Legal theory

Comparative negligence is a defense used to mitigate the amount that a defendant may have to pay to a plaintiff for damages. The defense is based on an assessment of the plaintiff’s fault, and then the award of damages to the plaintiff is reduced in direct proportion to the plaintiff’s percentage of fault.

In this case, Mr. K was found to be 46% at fault for his own injuries due to his negligence in not telling his physician that he had diabetes. His total award, therefore, is reduced by 46%. Dr. U was 56% at fault due to his failure to inquire about diabetes or perform a urinalysis prior to surgery. He is responsible for paying 56% of the $200,000 and $1,750,000 in damages.

Protecting yourself

Dr. U’s mistake, besides not having a more in-depth medical form, was not to take a thorough history from Mr. K. Spending the extra time to speak with patients and question them about their medical his-tory is well worthwhile. A few minutes spent speaking with a patient can unveil a host of issues. While a check box for diabetes on a medical form is certainly a good place to start, the personal conversation can’t be replaced.

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A comprehensive medical form, a thorough conversation about medical history, and basic screening tests (urinalysis and/or blood) are clearly good insurance before performing any surgical procedure, no matter how routine it may seem.