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The 'Culpable Conduct' Defense
Blameworthy conduct by the plaintiff in a medical malpractice action can take the form of failing to follow medical advice, refusing or neglecting recommended treatment, or intentionally providing an incomplete or misleading medical history. In those few states that still follow a doctrine of pure comparative negligence, a finding of culpable conduct will bar the plaintiff's recovery altogether. In states that follow a doctrine of pure or modified comparative fault, negligent conduct by a patient can be used to reduce the plaintiff's recovery by the percentage of liability attributed to the patient. And if it can be shown that the patient's conduct broke the chain of causation flowing from the defendant's alleged negligence, then recovery may be precluded even in a comparative negligence state.
Since adverse outcomes are often multifactorial, careful attention needs to be paid to developing any evidence of culpable conduct that may benefit the defense. While it may not be within the comfort zone of defense counsel to prove an affirmative case while being accused of “blaming the victim,” the proper representation of a medical malpractice defendant requires the ability to plead and prove the culpable conduct defense.
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