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Can I Be Blamed for My Doctor’s Malpractice?


Comparative fault is a common defense raised in Tennessee personal injury lawsuits. Basically, the defendant claims the plaintiff’s actions somehow contributed to his or her injury. In a car accident lawsuit, for example, a defendant accused of negligent driving might argue the plaintiff was also negligent and therefore at least partially responsible for the accident.

Did Bad Prescription or Missing Appointment Cause Patient’s Stroke?

But comparative fault can be raised in any type of personal injury action, including a medical malpractice lawsuit. The Tennessee Court of Appeals recently addressed such a case. Here, a trial judge granted summary judgment to the plaintiff on the defendant’s comparative fault argument, but the appeals court disagreed and said the jury should decide the matter.

The plaintiff in this case suffered a debilitating stroke while under the defendant’s care. Several years prior to the stroke, the plaintiff received a heart valve replacement. As a consequence of that surgery, she was a higher risk for blood clots.

According to the plaintiff’s lawsuit, she sought treatment from the defendant, her primary care doctor, for persistent headaches and left-side numbness. The defendant prescribed a Fioricet, a pain reliever. The plaintiff alleges that Fioricet contains a compound that interferes with blood clotting. The plaintiff’s stroke here was the result of a blood clot that formed on her heart valve replacement. Accordingly, her lawsuit alleges the defendant was negligent in prescribing Fioricet and failing to take additional steps to monitor her blood coagulation levels to prevent her stroke.

In response, the defendants submitted an affirmative defense alleging comparative fault by the plaintiff. This defense maintained the plaintiff failed to comply with “the advice and instructions of her health care providers,” which in turn contributed to her stroke. The trial court rejected this affirmative defense, holding the defendant “failed to offer any facts and competent opinions that any act of the plaintiff was more likely than not a cause of the stroke.”

But the Court of Appeals disagreed. The appeals court cited the deposition testimony of an “expert pharmacist,” who noted the plaintiff failed to keep a follow-up appointment with her cardiovascular doctor, which had treated her a week before she saw the defendant about her headache. Had she kept this follow-up appointment as instructed, rather than seeing the defendant, the expert testified “she wouldn’t be in the condition she’s in today,” i.e. she would not have suffered the blood clot and the stroke. A second expert witness agreed with that assessment.

This expert testimony was sufficient to jury to conclude there was comparative fault, the appeals court said, which was all the defendant needed to show to survive summary judgment.

A Tennessee Personal Injury Attorney Can Help

Even if you are convinced someone else’s negligence is solely responsible for your injuries, a defendant may still try and shift the blame to you to avoid liability. That is why it is important to work with an experienced Knoxville personal injury lawyer who understands the law of comparative fault and how it may affect your case. Contact the offices of Fox, Farley, Willis & Burnette, Attorneys at Law, if you need to speak with someone about your case today.

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