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Comparative fault and comparative negligence the two are frequently used interchangeably defenses used when the person alleging that he or she suffered personal injuries also bears some responsibility.

The most common application of comparative fault come when two cars collide and both drivers played a roll in the collision. Comparative fault is also used in less obvious circumstances.

For instance, defendants in medical malpractice actions frequently allege that the injured patient bears responsibility for his or her own injuries. While the defense may have some merit if the injured patient failed to follow the doctor’s advise or somehow interfered with the care provided by the doctor, it should have no application whatsoever where the injured patient caused his or her own injuries that preceded the medical care at issue in the lawsuit.

This issue was addressed in a 2002 decision through Supreme Court of West Virginia. In that case, a teenager was injured in a motorcycle race due to his own fault then had the misfortune of being negligently treated by an emergency physician. The court held that the jury could not be instructed under these circumstances to compare the teenager’s comparative negligence in calculating the award against the hospital. The court offered the following explanation:

Doctors may not avoid liability for negligent treatment by asserting that the patient’s injuries were recently caused by the patient being negligent. Even patients who injure themselves are entitled non negligent medical treatment.

In reaching its decision the court relied on similar cases from Georgia, Kansas, Oklahoma and Maine.

If you have quesitons about these issues you should contact a personal injury attorney.

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