In virtually every medical malpractice lawsuit that I’ve handled over my career, attorneys for the defendant healthcare providers have argued or implied that the patient was somehow at fault.
Sometimes defendants argue that the patient has a significant past medical history that somehow came into play and caused a bad outcome. They come up with these theories by liberally ordering plaintiffs’ medical records from as far back as possible. In some situations, the arguments that they come up with are simply absurd.
For example, I’m working on a case now where a man in his 70s developed severe problems after a two-level lumbar fusion surgery. Shortly after the surgery, this patient started having problems he had never experienced before, including numbness from the waist down, loss of control of his bowel and bladder, and sexual dysfunction.
The defense lawyer for the surgeon blamed it on the possibility that the patient was exposed to Agent Orange during the Vietnam War. I can’t wait to see how he explains how Agent Orange waited for over 40 years to cause all these problems right after a surgery!
In other medical negligence cases, there’s a question of what role the patient had in interfering with treatment. Healthcare providers refer to this as compliance. As referenced in medical records, a compliant patient is someone who follows the orders and instructions of physicians and other healthcare providers. A noncompliant patient is someone who doesn’t.
In a Texas medical malpractice lawsuit, this is an important consideration because of our modified comparative fault rule. Here’s how it works.
If a defendant pleads that the plaintiff bears some comparative fault, the jury charge will have a line with the plaintiff’s name, along with lines for each defendant. The jury decides who among these parties was negligent and assigns a percentage fault to each of them.
If the jury finds that the plaintiff was negligent and assigns 51% or more of the fault or responsibility to the plaintiff, then the plaintiff is totally barred from any recovery. The big picture message is that Texas law wants to make sure that the defendant is mostly responsible for plaintiff’s injuries in order for the plaintiff to be able to get a monetary judgment.
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Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas.
