Assumption of the Risk and Contributory Negligence Defenses in Medical Malpractice Cases

Review this practice note—adapted from the Matthew Bender & Company, Inc. treatise Louisell and Williams, Medical Malpractice—for a discussion of the elements of and considerations regarding the assumption of the risk and contributory negligence defenses in medical malpractice actions. Get up to speed on both express and implied assumption of the risk defenses. Drill down on the concept of contributory negligence with analyses of the avoidable consequences rule and the particularly susceptible victim doctrine, as well as plaintiff's failure to follow medical advice, give an accurate medical history, or timely seek treatment.

Read now »

Related Content

• Theories of Recovery in Medical Malpractice Cases
  Learn about the theories of liability used to support medical malpractice claims. Understand how medical malpractice claims are founded in common law and distinguished from other types of negligence causes of action. Review four common medical malpractice causes of action: negligence, strict liability, vicarious liability, and informed consent.
• Meeting a Physician's Duty of Care in Medical Malpractice Cases
  Identify how a physician's duty of care is determined and how that standard is applied to the physician's actions in a medical malpractice action. Look at the general reasonableness standard first, and then expand your review to assess the relevance of locality, specialty, and education on defining the physician's duty. Consider the impact of statutory obligations on establishing the physician's duty as well as the availability of medical alternatives to the one applied.
• Medical Malpractice Actions State Law Survey
  Access information on arbitration of medical malpractice claims, claim review panels, injury compensation, damage caps, pleading requirements, expert witness qualifications, burdens of proof, and statutes of limitations from all fifty states. Gain insight into issues like expert opinion and/or affidavit requirements, limited liability for providers of free medical care, and caps on damages.

Practical Guidance Updates
Featuring the latest updates from your Practical Guidance account.   

• Explore the Chevron Reversal Impact Resource Kit for analysis related to the Supreme Court’s decision to overturn four decades of deference to federal agency interpretations of ambiguous statutes.
• State Abortion Laws Tracker After Dobbs v. Jackson Women's Health Organization—stay current on state and federal judicial and legislative activity regarding women’s health and reproductive rights.
• Document alerts allow you to stay current on legal developments that affect your practice. Find out how to set up your document alerts.
• Review this guidance, AI and Legal Ethics: What Lawyers Need to Know, in the Summer Edition of the Practical Guidance Journal. Explore insights from a judge into the use of GenAI in civil litigation, including discovery issues, use cases, and key takeaways. Also advance your career with professional and business development guidance.
• For related Practical Guidance content on important recent trends, please review these easy-to-use Resource Kits on a variety of emerging topics:
  • Healthcare Fraud and Abuse Compliance Resource Kit
  • Healthcare Fundamentals Resource Kit
  • Healthcare Transactions, Licensing, and Regulation Resource Kit
  • Health Information Privacy and Security Resource Kit
• Generative Artificial Intelligence (AI) Resource Kit is a frequently updated collection of current Practical Guidance materials on generative AI, ChatGPT, and similar tools.
• Public Interest, Pro Bono, and Non-Profit Resource Kit offers valuable guidance for those providing pro bono legal services and assisting non-profit organizations and public interest groups. It includes useful content on topics including tenant's rights, fair housing and lending, discrimination, immigration, and general non-profit resources. 
• Listen Up! The Practical Guidance and Law360 Podcasts Resource Kit features interviews with industry-leading attorneys on cutting edge issues in the law: NFTs, Cannabis, COVID-19, and more.
• Legal Developments provide the latest updates and analyses of emerging topics impacting your practice area. Visit the Legal Developments page to see the latest topics, which also include breaking legal news and related Practical Guidance content.
• Learn About New Practical Guidance Content and Resources
  Review this exciting guide featuring some of the recent content additions to Practical Guidance, designed to help you find the tools and insights you need to work more efficiently and effectively.
• Browse the Practical Guidance Author Center to see the 2000+ leading attorney authors contributing to our 26 practice areas. Interested in becoming a Practical Guidance author? Click here for details. Practical Guidance is committed to amplifying diverse voices of attorneys across all differences, including gender and race.   

PRACTICAL GUIDANCE CUSTOMER EMAIL EDITION ON THE WEB

Experience results today with practical guidance, legal research, and data-driven insights—all in one place.

Experience Lexis+