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The terms “comparative negligence” and “contributory negligence” may sound a lot alike, but if you’re the victim of medical malpractice in Maryland, the difference between the two could mean winning or losing your lawsuit.

The reason why starts with a definition of negligence. At its most basic, negligence is when  someone fails to act in a way a reasonably careful person would under similar circumstances. For example, when coming to a stop sign, a reasonable person would stop, look both ways and proceed. If someone doesn’t, they have acted negligently. And if their negligence results in harm to others, those people are entitled to sue for damages.

Negligence is a critical factor in many civil cases, and especially in the field of medical malpractice. Quite often in these cases, a patient must prove that negligent behavior by a health care professional caused injury to the patient. In a medical context, this negligence is sometimes referred to as a breach in the standard of care.

But negligence is often not one-sided. Sometime two or more parties in the same incident failed to act reasonably, and all sides share responsibility for the damages that result. For instance, maybe after a procedure a doctor gives the patient a specific diet to follow. Even though there was negligence on the part of the doctor during the procedure that caused harm, by not following the special diet afterwards, the patient made the resulting injuries worse.

Determining negligence in civil cases–and the resulting damages awarded–varies by state. Most states operate under “comparative negligence,” where a jury decides what portion of an injury is due to negligence on behalf of the health care professional and on behalf of the plaintiff, and the recovery is based on this percentage. Thus, if negligence by a patient is determined to be 20% responsible for an injury, their recovery award will be 80% of the value of their damages.

Maryland, however, is one of four states that still operate under “contributory negligence,” where if patient negligence is determined to have played any role at all in an injury, the patient is completely barred from recovery.

This means that even if a patient is found to be only 1% responsible, they can’t recover anything. In one of our recent cases, a jury found that a doctor’s negligence had caused our client to lose a kidney and require dialysis and a transplant. That said, the jury also found that the patient had failed to return to the hospital for a blood test (a single blood test!) and was therefore unable to collect any damages for his severely-disabling injury. Is this a just outcome?

In recent years, many attorneys in Maryland have been working to push state courts towards a fairer system of comparative negligence. It’s an issue that demands more debate and more public understanding.