Contributory Negligence – The Debate Goes On

Sometimes, it is sad to see an age-old tradition possibly facing the end of the line — but not always. In the case of the long-standing legal doctrine called Contributory Negligence, which has held its place in the courtrooms of Maryland for nearly 150 years, those of us who represent the victims of negligence are eager to say good riddance.

But after years of debate in both the legislature and the courts, the future of the controversial doctrine in Maryland continues to hang in the balance. This is despite the fact that 46 states have already abandoned it.

Under the doctrine of Contributory Negligence, a person who is injured through the negligence of another is barred from receiving any award of damages if the court finds the plaintiff contributed in any way to causing the injury. That rule stands even if it is clear the other party was almost 100 percent responsible — which is why the doctrine is the darling of attorneys who defend those sued for personal injury. But to attorneys who represent the injured in cases such as medical malpractice, the rule is grossly unfair, often allowing parties to walk away from their negligence unscathed while their victims suffer all the consequences.

For example, a medical malpractice plaintiff may be unable to collect any damages if it is found that the plaintiff:

  • Omitted relevant information when consulting the doctor.
  • Imperfectly followed post-operative orders.
  • Did not take prompt action after receiving a diagnosis.
  • Was inconsistent in taking prescribed medications.
  • Took any actions against the advice of a medical professional.

Most states have long since replaced the rule with the doctrine of Comparative Negligence, which adjusts — but does not eliminate — the damages awarded if the plaintiff is found to be partially responsible for the injury. Here in Maryland, though, we are still waiting. But no matter what your medical malpractice claim involves, contact a Baltimore malpractice attorney at LeViness, Tolzman & Hamilton, P.A. to help you.