In the United States, all medical malpractice cases are litigated and resolved under one of two theories. The first is the theory of contributory negligence. In this theory, the original law (and ancient law derived from the common law of England) states that if the patient contributed at all to the harm caused by the medical professional, then the patient was not entitled to any compensatory relief. This theory insists that only a completely blameless patient should have recourse against a medical professional.
The second theory is the theory of comparative negligence. This is the more modern doctrine and preferred in most jurisdictions. Under comparative negligence, all injured patients could still file a malpractice suit even if the patient contributed to the harm caused. Therefore, if a doctor were 50% at fault and the patient were found (by judge or jury) to be 50% at fault, the patient could still recover 50% of the total damages from the defendant practitioner.
Think about the strengths and weaknesses of each of these theories, and choose which one you believe is the more just, and why.
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