Malpractice lawsuits can use defenses such as contributory negligence, comparative negligence, assumption of risk, and failure to mitigate damage. Contributory negligence is when the plaintiff is also negligent, while comparative negligence reduces damages based on the plaintiff’s level of guilt. Assumption of risk applies to dangerous activities, and failure to mitigate damage is when a plaintiff neglects medical attention. Jurisdictions vary in their use of these defenses.
Two of the defenses that might be used in a malpractice lawsuit are contributory negligence or comparative negligence. These defenses are used when the plaintiff has also been negligent in some way. A defendant could also claim assumption of risk, meaning that the other individual participated in an activity that she should have known could cause injury. If an individual is injured but does not get immediate medical attention, one defense could be failure to mitigate the damage. The type of negligence protection available varies according to local statutes and individual circumstances.
Contributory negligence is one of the most common fault exceptions. It is used when the person who suffered the damage was also negligent in some way. This could be due to being inattentive, driving recklessly, or under the influence of drugs or alcohol. The argument is that if the individual had not participated in negligent behavior, he would not have been injured because he could have avoided the accident.
In areas that recognize contributory negligence as a defense, the plaintiff is barred from recovery if he is found to have contributed even slightly to the accident. For this reason, many jurisdictions have now moved to using comparative negligence as a defense instead. This defense prevents the plaintiff from recovering damages only to the extent that he is found guilty. For example, if a plaintiff is found guilty of two percent and the defendant guilty of 98 percent, his damages would be reduced by two percent instead of the full amount.
Risk assumption is one of the malpractice defenses used when people are injured while participating in dangerous activities. This is typically when they reasonably should have known they might be injured. Some examples of this would be skydiving or bungee jumping. It could also be applicable anytime someone knowingly uses faulty equipment to do a job, such as climbing an unsafe ladder. This defense can be used in many jurisdictions whether or not a waiver has been signed.
Wounded people have a duty to keep their afflictions from getting worse. Failure to mitigate damages is one of the malpractice defenses used when a party neglects to seek medical attention after an accident. This is because if medical advice is not sought quickly, the condition could worsen. Many courts hold that people should only be liable for the harm they have caused rather than complications resulting from improper care.
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