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Contributory Negligence Doctrine Bars Many Maryland Personal Injury Claims

Article posted on: 10/24/2007

In Maryland, contributory negligence means that if a person is found to be 1% or more at fault, that person is 100% barred from making any recovery.

For example, if you are the victim of a rear end collision and the judge or jury finds you contributed to the accident by stopping too quickly, you can not recover for any of your medical bills, lost wages or other damages. Often in slip and fall cases, a Maryland plaintiff will be barred from recovery because a jury determines the plaintiff is partially at fault for not watching where she was going.

The Contributory Negligence Doctrine is unique to Maryland, Virginia, North Carolina and the District of Columbia.

In medical malpractice cases, the duty to exercise reasonable care does not rest exclusively upon the doctor in a physician/patient relationship. Rather, the patient is bound to use the amount of care in the protection of his own health and well being being as a reasonably prudent person would use under similar circumstances. In order for a plaintiff's negligence to constitute such a bar, it must be a true contributing proximate cause of the damages suffered. If it occurs subsequent to the defendant's negligence, merely exacerbating the damages rather than contributing to their cause, the plaintiff's negligence might serve to mitigate the recoverable damages, but it will not relieve the defendant from liability. This is not to say that subsequent acts by the plaintiff may not constitute contributory negligence. They can. But the test is not simultaneity but whether the plaintiff's negligence has significantly contributed to the injury for which he or she sues.

Some examples of contributory negligence include an unreasonable failure to follow a doctor's instructions, an unreasonable delay in undergoing a necessary surgical procedure, or an unreasonable failure to keep follow up appointments with the physician. The failure to keep the follow up appointments must be "unreasonable." In a recent case, the failure of more than one year delay in following up was found to constitute contributory negligence as a matter of law, while in another case, the reasonableness of a delay of two weeks was held to raise a question of fact. If however the physician considers the treatments ended and does not instruct the patient to return, the patient is not chargeable with negligence for failure to do so.

While contributory negligence will indeed act as a defense to a medical malpractice action, as a practical matter, the application of the defense is difficult and limited due to the disparity between the relative positions of the doctors and patients in the area of medicine. For example, generally speaking the patient is not in a position to diagnose his or her own ailments, know the risks of treatment or non treatment of particular conditions or judge whether the course of treatment is in his own interest. In short, patients have the right to rely upon his or her doctor's own experience and skill and cannot be considered contributorily negligent for failing to diagnose his/her own illness or failing to seek opinions from other doctors.

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