Attorney at Law

8 Defenses to Medical Malpractice

Lia Kopin-Green
July 14, 2022
Last reviewed by
Boruch Burnham, Esq.
May 28, 2023

We put our lives in the hands of doctors and other medical providers and leave them responsible for our treatment and healing. They should be held accountable for their actions if they cause us harm due to negligence while carrying out these responsibilities. However, doctors acting in good faith should not be punished for poor medical outcomes. As a result, medical professionals accused of wrongdoing have several defenses at their disposal. Let’s take a closer look at some of the most common defenses to medical malpractice claims.

1. Absence of Negligence

To establish a malpractice claim, a plaintiff will generally have to prove that:

  1. The medical provider had a duty of care toward them
  2. The provider did not meet that duty of care
  3. The provider’s failure to do so was a proximate cause of the injury

Therefore, one of the most common defenses medical providers will raise is that they meet their duty towards the patient by acting reasonably, responsibly, and in accordance with community standards in providing their care.

2. Absence of Causation

A successful medical malpractice claim requires establishing causation: the cause-and-effect relationship between the medical provider’s actions and the patient’s outcome. In other words, the plaintiff must prove that there is a causal link between the doctor’s actions (or inaction) and the actual harm sustained by the patient. This defense is frequently raised in malpractice claims involving misdiagnoses. Assume a doctor initially failed to diagnose a terminal illness, and the patient eventually passed away. If it can be proved that there was no available treatment for this illness and the death would have occurred even if the doctor had properly diagnosed the patient, the absence of causation can act as an effective defense.

3. Foreseeability

Medical professionals have a duty to protect their patients from any harm that they believe could occur as a result of their treatment. Even so, sometimes harm or loss can occur that was not reasonably foreseeable. The foreseeability defense can be used by doctors who can show that they could not have reasonably foreseen the patient's injury or harm. For instance, there may be a claim that the side effect or outcome of your procedure was too rare to have been predicted beforehand. In these cases, the doctor’s attorney would need to prove that other physicians in the field would have acted in the same manner.

4. Good Samaritan Laws

Several states have “Good Samaritan Laws” in place that are intended to protect individuals who voluntarily respond to medical emergencies. These protections generally mean off-duty doctors aren't liable for injuries sustained during rescue operations if they stop to assist someone after an accident. Nevertheless, they still owe a certain duty of care that any reasonably competent doctor would provide in a similar situation. This defense typically requires proving that the physician had no preexisting duty to provide the treatment. Therefore, doctors who provide emergency care while they’re “on the clock” at a hospital would not be eligible for protection under Good Samaritan Laws.

5. Contributory or Comparative Negligence

When raising a contributory or comparative negligence defense, medical providers do not necessarily deny that they were at fault for causing the injury. Instead, they will attempt to shift some of the blame onto the plaintiff to either have the claim dismissed or mitigate their damages. In a “contributory negligence” state, a person cannot maintain a malpractice claim if they themselves are also at fault for causing the injury to any extent. 

Other states adopt “comparative negligence” principles, which can be classified under two categories: “pure” comparative negligence states, in which the amount of damages the plaintiff can recover will be reduced by the direct percentage of fault allocated to them, regardless of how much they were at fault; and modified comparative negligence states, wherein once a plaintiff exceeds a certain percentage of fault (such as if they were 51% responsible for their injuries), they will be entirely barred from sustaining a malpractice claim against the provider—even though the provider’s negligence was, to some extent, a proximate cause of their injuries.

6. Assumed Risk

Even the simplest of medical procedures and treatments come with a certain degree of risk. Healthcare professionals may require patients' consent, often in writing, before performing certain procedures due to the risks involved. If the doctor can prove that the patient was aware of the potential risk and chose to proceed with the procedure or treatment anyways, the assumed risk defense may apply. However, in some cases, while the patient may be informed of the possible dangers of a particular treatment, they aren’t always given multiple treatment options to choose from. It would be difficult for a doctor to argue that the patient voluntarily assumed the risks if he or she did not provide any other alternative options for treatment.

7. Statute of Limitations

A patient has a certain amount of time to file a lawsuit against a medical provider. The laws that regulate these limits, known as statutes of limitations, vary by state. For instance, some states follow the “date of injury rule,” under which the statute of limitations begins to run on the date the injury was caused. Other states follow the "discovery rule," under which the statute of limitations period only begins to run once the injury is discovered, or should have been discovered, by a reasonable person under similar circumstances. 

For example, suppose a person continues to suffer from an injury for a prolonged period after undergoing a medical procedure and does not seek medical treatment during which it would have been discovered that malpractice had been committed. In that case, the statute of limitations will begin to run from when a reasonable person would have sought further medical treatment, which would have revealed that the initial medical provider’s malpractice caused the continuing injuries. 

8. Respectable Minority Principle

A medical professional may occasionally determine that a new or uncommon treatment is necessary to most effectively treat a patient, even though the treatment was risky and potentially harmful. A medical provider may be able to defend against a malpractice claim involving such treatment if they can establish that a respectable minority of competent medical providers support that course of treatment. This defense also implicates issues regarding informed consent because the medical provider must properly notify the patient of the potential risks involved with the treatment in advance to prevail on that defense successfully.

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