What are the Possible Defenses do Medical Professionals have against a Malpractice Lawsuit?


Common Defenses in Medical Malpractice Cases

We trust doctors.  Nevertheless, the doctors we trust cause us harm.  If they do, patients should seek to hold them accountable for the damage they have caused.  However, there are defenses available to medical professionals who have been accused of malpractice.

Standard Negligence Defenses

Medical malpractice is considered to be a type of negligence.  Therefore many of the defenses allowed against general claims of negligence can also be used against medical malpractice claims.  Examples of such defenses include:

  • Doctors can argue that their care was up to their medical professions standards.
  • The patient’s injuries weren’t due to medical error.
  • Normal and expected risk of a procedure.
  • Patient gave informed consent.

Comparative Negligence

There are times when medical professionals aren’t solely responsible for a patient’s injury.  A medical professional can attempt to show that an injury would not have occurred but for a patient’s negligent act.  If they are able to prove this, then s/he may have a valid defense against a claim for medical malpractice.  Examples of contributory negligence include:

  • A patient mixing prescriptions against the orders of the doctor.
  • If the patient fails to disclose important parts of their medical history.

Respectable Minority Principle

There are times when a medical professional may decide to pursue a new or radical type of treatment that may be more effective.  The doctor a valid defense in such cases should a respectable minority of medical professionals support the line of treatment.  The doctor must inform the patient of the risks involved before treatment begins.  Failure to inform the patient may result in a lack of informed consent claim.

Good Samaritan Laws

Several states have “Good Samaritan” laws that shield individuals who have come to the aid of individuals in medical distress.  Doctors, nurses, and other medical professional tend to be specifically mentioned in these laws.  Therefore, if a doctor aids a personal person in an emergency situation, then s/he may be protected from civil liability if something goes wrong during the rescue.  Regardless medical professionals who aid someone voluntary, then they owe the person the dame duty of care and treatment as a reasonably competent physician in the same or similar circumstances.

Each of these defenses can be rebutted by an experienced New York medical malpractice lawyer.  Many of these defenses are also inappropriate and do not work on a legal basis, but can be used to trick juries.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.