As a general rule, Indiana common law uses the comparative fault doctrine for negligence actions. However, Indiana’s adoption of the comparative fault doctrine specifically excluded “actions against qualified healthcare providers for medical negligence.” Instead, the doctrine of contributory negligence applies to actions for medical negligence against qualified healthcare providers.
A plaintiff’s contributory negligence operates as a complete bar to recovery. Even a patient whose own negligence was even slightly causal to his/her injury cannot recover against a qualified healthcare provider. To succeed on the defense of contributory negligence, it must be shown that the plaintiff’s negligent act was a proximate cause of his injury and that he was actually aware of or should have appreciated the risks involved. The defense of proximate cause requires only that a plaintiff’s negligence be ‘a’ proximate cause, that is, one of the proximate causes.
Courts will find a plaintiff contributorily negligent if his conduct falls below the standard to which he is to conform for his own protection. It is well-established that a patient has a duty to follow instructions given to him by his physician. A patient’s failure to provide accurate diagnosing information or failure to seek recommended treatment are examples of such contributory negligence.
When defending a claim for medical malpractice, counsel should consider whether the plaintiff was contributory negligent, and analyze whether a Motion for Summary Judgment is appropriate to bar a plaintiff’s recovery against a qualified healthcare provider.
This article is for information purposes only and is not intended to constitute legal advice.