Understanding Comparative Negligence in NY Malpractice: Can You Sue if You Were Partially at Fault?

What Is Comparative Negligence?

Comparative negligence is a legal doctrine that allocates fault between the plaintiff and the defendant in a personal injury case. Under comparative negligence, the jury (or judge) assigns a percentage of fault to each party, and the plaintiff's recovery is reduced by their percentage of fault.

There are two main types of comparative negligence:

• Pure comparative negligence: The plaintiff can recover damages even if they were mostly at fault. The recovery is reduced by the plaintiff's percentage of fault. For example, if the plaintiff was 80% at fault, they can still recover 20% of their damages. New York follows pure comparative negligence.
• Modified comparative negligence: The plaintiff can recover damages only if they were less than 50% (or 50% in some states) at fault. If the plaintiff was 50% or more at fault, they cannot recover anything. Many states follow this rule, but New York does not.

New York's Pure Comparative Negligence Rule

New York follows the doctrine of pure comparative negligence under CPLR 1411, which states:

• The plaintiff can recover damages in any action for personal injury, even if they were partially at fault.
• The plaintiff's recovery is reduced by their percentage of fault.
• There is no threshold -- the plaintiff can recover even if they were 99% at fault (though they would only recover 1% of their damages).

How Comparative Negligence Works in Medical Malpractice Cases

In a medical malpractice case, the jury evaluates the conduct of both the healthcare provider(s) and the patient. Common scenarios where the patient may be found partially at fault include:

• Failure to follow medical instructions: The patient did not follow their doctor's instructions (e.g., did not take prescribed medications, did not attend follow-up appointments, did not follow dietary restrictions).
• Delay in seeking treatment: The patient delayed seeking medical treatment after symptoms appeared, which worsened their condition.
• Failure to provide complete medical history: The patient did not provide their complete medical history, including prior conditions, medications, allergies, and family history.
• Failure to communicate symptoms: The patient did not adequately communicate their symptoms to the healthcare provider.
• Use of tobacco, alcohol, or drugs: The patient's use of tobacco, alcohol, or drugs contributed to their injury.
• Non-compliance with treatment: The patient did not comply with the recommended treatment plan.
• Pre-existing conditions: The patient had pre-existing conditions that contributed to their injury.

Example: How Comparative Negligence Affects Your Recovery

Here is an example of how comparative negligence works in practice:

Suppose a patient sues their doctor for failing to diagnose cancer. The jury finds that the doctor was 80% at fault for failing to diagnose the cancer (the doctor did not order appropriate tests or follow up on abnormal results). However, the jury also finds that the patient was 20% at fault because they delayed seeking follow-up care after experiencing symptoms.

If the patient's total damages are $1,000,000, the patient's recovery would be reduced by their 20% fault:

• Total damages: $1,000,000
• Patient's fault: 20%
• Reduction: $200,000 (20% of $1,000,000)
• Patient's recovery: $800,000 ($1,000,000 - $200,000)

How the Defense Uses Comparative Negligence

In medical malpractice cases, the defense will try to shift blame to the patient to reduce the defendant's liability. Common defense arguments include:

• 'The patient did not follow our instructions.' The defense argues that the patient failed to follow medical instructions, attend follow-up appointments, or take prescribed medications, and that this caused or contributed to the injury.
• 'The patient delayed seeking treatment.' The defense argues that the patient delayed seeking medical treatment after symptoms appeared, and that this delay worsened their condition.
• 'The patient did not provide a complete medical history.' The defense argues that the patient did not provide their complete medical history, which prevented the healthcare provider from making an accurate diagnosis.
• 'The patient's lifestyle choices contributed to the injury.' The defense argues that the patient's use of tobacco, alcohol, drugs, or poor diet contributed to their injury.
• 'The patient had pre-existing conditions.' The defense argues that the patient's pre-existing conditions caused or contributed to the injury, rather than the healthcare provider's negligence.

How We Counter Comparative Negligence Arguments

At MDLaw Firm, we anticipate and counter comparative negligence arguments by:

• Establishing the standard of care: We prove that the healthcare provider breached the standard of care, regardless of the patient's conduct. The standard of care is what a reasonably prudent healthcare provider would have done under the same circumstances. [Link to: /guides/standard-of-care]
• Distinguishing fault from causation: We distinguish between the patient's conduct (which may have contributed to the injury) and the healthcare provider's negligence (which caused the injury). We prove that the healthcare provider's negligence was a substantial factor in causing the injury.
• Minimizing the patient's fault: We present evidence that minimizes the patient's percentage of fault. For example, if the patient missed a follow-up appointment, we may show that the healthcare provider did not adequately emphasize the importance of the appointment or did not follow up when the patient missed it.
• Using expert testimony: We use expert witnesses to explain the standard of care, the breach, and causation, and to address the patient's conduct in context.
• Documenting the healthcare provider's negligence: We thoroughly document the healthcare provider's negligence through medical records, expert testimony, and other evidence. [Link to: /resources/how-to-get-medical-records-for-a-lawsuit]

Comparative Negligence vs. Contributory Negligence

It is important to distinguish between comparative negligence and contributory negligence:

• Comparative negligence (New York): The plaintiff's recovery is reduced by their percentage of fault, but they can still recover even if they were partially at fault. New York follows pure comparative negligence under CPLR 1411.
• Contributory negligence (minority of states): If the plaintiff was even 1% at fault, they cannot recover anything. Only a few states (Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.) follow this rule. New York does not.

What This Means for Your Case

If you were partially at fault for your injury, do not let that discourage you from pursuing a medical malpractice claim. Under New York's pure comparative negligence rule:

• You can still recover damages even if you were partially at fault.
• Your recovery will be reduced by your percentage of fault.
• The jury (or judge) will assign a percentage of fault to each party.
• An experienced medical malpractice lawyer can help minimize your percentage of fault and maximize your recovery.
• Even a small percentage of fault on your part does not bar your claim -- it only reduces your recovery proportionally.

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.