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Does Comparative Negligence Apply in a Florida Medical Malpractice Case?


In most types of personal injury cases, your own misconduct can reduce the amount you can recover from the party who caused your injuries. Florida’s statute on comparative fault provides that your compensation is decreased according to the proportion of fault attributable to you.

The question often arises regarding whether comparative fault applies in a case for medical malpractice. After all, how could a patient be responsible for causing a medical error? The legal concepts are complicated, so you should consult with a Florida medical malpractice lawyer on the details. However, you should read on for some important information that may affect your rights.

Overview of Comparative Fault in Medical Malpractice Claims: When a health care provider makes a medical error and causes harm to a patient, the victim can recover compensation in a medical malpractice claim. The key to success is proving that the practitioner deviated from the acceptable standard of care in the medical field, which is based upon how a reasonably careful provider would have treated the patient under the same circumstances and in the same or similar field.

Comparative fault enters the picture where the patient’s own negligence was a contributing factor causing the harm, or in preventing the recovery process. In other words, even though the health care provider made a mistake, the patient is also partially at fault for the resulting bodily harm. 

Examples of Patient Fault: The focus on comparative fault in a medical malpractice case is what transpired from the moment the patient sought care for an illness or injury. Some examples of patient negligent acts, throughout the timeline of treatment, may include:

  • Stating false medical information, such as leaving out a key medical condition or an allergy
  • Failing to follow doctor’s orders for at-home care
  • Missing appointments and not rescheduling them
  • Omitting information regarding tobacco, drug, or alcohol use
  • Neglecting to visit a specialist upon referral
  • In the case of an injury, lying about how it occurred and the surrounding circumstances
  • Engaging in acts that aggravate or exacerbate a medical condition

You should note that any of these examples would be irrelevant if they’re not directly linked to your injuries. Failing to tell your provider about an allergy to penicillin is irrelevant if the doctor improperly set a broken bone in your leg. 

How Comparative Negligence Affects Your Compensation: Under Florida’s statute on comparative fault, your monetary damages will be reduced by the percentage of fault attributable to your actions. As an example, you would recover less if you sought treatment for a cough, but didn’t mention that you’re a smoker. Your physician’s decision on writing a prescription might be erroneous, but he or she didn’t have the full facts. 

Consult with a Florida Medical Malpractice Attorney Regarding Your Case 

To learn more about how comparative fault can impact your compensation in a medical malpractice claim, please contact Freidin Brown, P.A. We can schedule a no-cost case evaluation for you at our offices in Miami or Fort Myers. Once we review your circumstances, we can determine the most effective strategy for enforcing your rights.

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