The Question:
Can I sue for medical negligence in Pennsylvania even if I was partially at fault for not following the doctor’s recovery instructions?
The Short Answer
Yes, likely you can. In Pennsylvania, being partially at fault does not automatically ban you from suing. We follow a legal rule called Modified Comparative Negligence.
As long as the doctor (or hospital) was more responsible for your injury than you were (specifically, if you were 50% or less at fault), you can still recover damages. Your final payout is simply reduced by your percentage of fault.
The Golden Rule: Do not assume your mistake cancels out their malpractice.
How the “51% Rule” Works in Medical Malpractice Cases
Pennsylvania law compares the negligence of all parties.
- If You Are 50% or Less at Fault: You win, but your money is reduced.
- Example: A jury awards you $1,000,000 for a botched surgery. They find the doctor 80% at fault and you 20% at fault (perhaps for missing a follow-up). You still walk away with $800,000.
- If You Are 51% or More at Fault: You recover $0. This is the “Bar to Recovery.“
The Critical Distinction: Cause vs. Mitigation
In catastrophic injury cases, the defense will almost always try to blame you to avoid paying. We fight this by separating the Malpractice from the Recovery.
- The Cause of the Injury (The “Event“): Did your action cause the stroke, the severed nerve, or the cancer?
- Example: If a surgeon cuts the wrong artery, that is 100% their fault. It does not matter if you smoked cigarettes or were overweight. Your lifestyle did not force the surgeon’s hand to slip.
- Mitigation of Damages (The “Aftermath“): Did your action make the recovery worse?
- Example: The surgeon botched your knee replacement (Malpractice). Later, you skipped physical therapy (Failure to Mitigate).
- Result: The defense might argue you are responsible for the stiffness, but they are still fully liable for the botched surgery that made the therapy necessary in the first place.
The “Blame the Patient” Strategy
Defense lawyers love to dig through your medical history to find “non-compliance.” They will highlight:
- Missed appointments.
- Failure to fill prescriptions.
- Lifestyle choices (smoking, diet).
This is a distraction. In a wrongful death or catastrophic injury case, a missed pill does not justify a fatal overdose administered by a nurse. We use medical experts to prove that the doctor’s negligence was the primary, overwhelming cause of the tragedy, regardless of your minor lapses.
Why You Should Never Admit Fault to the Adjuster
Because the line between 50% (You Win) and 51% (You Lose) is so thin, you should never discuss your own actions with insurance adjusters. They are trained to trick you into admitting you “didn’t follow instructions” to push you over that 51% line. Let your lawyer handle the narrative.