While it’s never fun to argue for the other side of an argument that you are having, in the case of medical malpractice, it is very important to understand just how the legal factors impact such a complicated area of law. So, for the sake of argument, let’s take a look at how doctors, medical professionals and medical institutions could build a defense to a medical malpractice claim.
First of all, it is important to know that if you are harmed by a negligent doctor or a medical error, the medical malpractice claim that you may file would fall under general negligence guidelines. What this means is that common negligence defenses can be — and likely will be — used to combat your claim.
Contributory negligence is also a big argument that medical professionals and institutions may point to. What this means is that the patient contributed to the ultimate injury or negative medical condition. An example of contributory negligence would be a patient taking the wrong prescription, or mixing prescription, or even doing something that a medical professional told them not to do.
The “respectable minority principle” may come in to play in your case. This refers to medical errors that occur during an experimental or more radical treatment. Though outside the “medical mainstream” and thus it may seem more negligent, the actual procedure may have been within the guidelines of the niche industry or community that upholds it.
There are also Good Samaritan situations to consider. If an emergency occurs and a medical professional tries to help someone or save their life by performing something under distress, the medical professional could be exempt from medical malpractice.
Source: FindLaw, “Defenses to Medical Malpractice,” Accessed July 28, 2015