What are the typical defenses against medical negligence claims, including contributory/comparative negligence and assumption of risk?

• A. Contributory negligence only.
• B. Comparative negligence only.
• C. Assumption of risk only.
• D. Contributory, comparative negligence, and assumption of risk.

Answer: (D)

When defending a medical negligence claim, a doctor can point to different ways the patient’s own actions or choices limited or barred recovery. The first is that the patient contributed to the harm by not following medical instructions, delaying care, or engaging in risks that worsened the outcome. This is contributory negligence. Depending on the jurisdiction, that contribution can fully bar recovery or reduce damages, and many places have moved from the old all-or-nothing rule to fault-based schemes.

Another approach is comparative negligence, where fault is actually split between patient and provider. The damages the patient can recover are reduced in proportion to the patient’s share of fault. Some systems use pure comparative negligence (any amount of patient fault still allows some recovery), while others cap or bar recovery if the patient’s fault passes a certain threshold. The key idea is to assign responsibility rather than necessarily deny all compensation.

The third defense is assumption of risk, which arises when the patient knowingly accepts the risks associated with a procedure or treatment. This is closely tied to informed consent: if a patient understands and agrees to the potential risks, the claim may be limited or barred for those risks. This defense centers on the patient’s voluntary choice to undergo the procedure despite the risks.

All three defenses can come into play in different cases or jurisdictions, so recognizing contributory negligence, comparative negligence, and assumption of risk as distinct but available defenses explains why a defense package that includes all of them would be the most comprehensive answer.