Ruling on contributory liability defense could expose physicians to more lawsuits

By Alicia Gallegos amednews correspondent — Posted July 23, 2012

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A legal challenge before Maryland’s high court could be the end of a decades-old doctrine that bars plaintiffs from recovering damages if they contributed to their injury. The state’s contributory liability clause says parties who are partly responsible for being harmed may collect no damages from another culpable party.

Physicians say uprooting the law would mean patients could recover damages in medical liability suits, even when a patient’s lack of compliance aided to their outcome. The handful of states that allow such legal defenses would be negatively impacted by the Maryland ruling, medical and legal experts say.

“Our concern is that for physicians in Maryland and other jurisdictions that still have [the doctrine], this is a defense that’s used to prevent them from being liable in tort cases,” said Gene Ransom, CEO of MedChi, the Maryland State Medical Society. The medical society wrote a friend-of-the-court brief in support of contributory negligence. “When the plaintiff is partially responsible for injuring themselves, they shouldn’t be able to receive a windfall for their injuries.”

The legal dispute involves an assistant soccer coach who was injured in Fulton, Md., after he swung from a goalpost. James Coleman experienced multiple facial fractures when the goalpost fell on him.

He sued the Soccer Assn. of Columbia, claiming the association failed to warn him about the dangers of swinging from the post. The association also failed to inspect the goal to ensure it was adequately secured to the ground, he said.

Jurors in 2011 found the soccer association negligent in causing Coleman’s injuries. However, they found Coleman’s actions contributed to the accident. Because of Maryland’s contributory negligence clause, Coleman was prevented from receiving any award.

Coleman appealed. His attorney argued contributory negligence is an “antiquated doctrine” that fails to advance tort law’s goal of matching responsibility and fault.

The doctrine should be changed to comparative negligence, the plaintiff said. Comparative negligence allows jurors to decide the responsibility level of each party and allocate an amount of liability to each side. For example, a patient could be considered 25% responsible for an injury, while a doctor is deemed 75% liable. A damage award would then reduced depending on the physician’s level of responsibility.

The Court of Appeals of Maryland agreed to review the case, bypassing a review by the state’s intermediary court, the Maryland Court of Special Appeals. At this article’s deadline, a date for oral arguments had not been scheduled.

Legal defense at risk

The contributory negligence rule started more than 100 years ago in England and was later adopted in the U.S. Today, Alabama, the District of Columbia, Maryland, North Carolina and Virginia use the contributory negligence clause. Most other states have moved to comparative negligence, said Don Gifford, a law professor at the University of Maryland Francis King Carey School of Law. (link)

If the court overturns Maryland’s contributory negligence clause, the ruling probably would impact other jurisdictions that use the clause, medical experts said.

It could have “a trickle-down effect,” said Les Hayes, general counsel of the Medical Assn. of the State of Alabama. If Maryland’s contributory negligence were changed, “I’m sure we could expect to see some type of movement [in Alabama] related to that, possibly a bill that comes down in the Legislature. Groups obviously keep an eye on what goes on in other states.”

If challenged, the medical association would fight to keep the contributory negligence clause intact, Hayes said.

Contributory negligence is an “all or nothing” system that does nothing to encourage safety or personal responsibility, said Bruce Plaxon, Coleman’s attorney. The state should join other jurisdictions in moving to comparative negligence, he said.

“Contributory negligence has harsh implications which result in unfair verdicts,” he said in an email. “Comparative negligence is an inherently fair system of justice.”

Supporters of contributory negligence say the decision to change the common law should be made by the government and not the courts. Since 1966, comparative negligence has been discussed during nearly 30 legislative sessions in Maryland, but the change has never been enacted.

“It seems apparent that [the plaintiff] is raising the issue here specifically because the Legislature has carefully considered it numerous times and said no,” said a friend-of-the-court brief joined by the Litigation Center of the American Medical Association and the State Medical Societies in support of keeping Maryland’s contributory negligence clause. The brief was joined by the American Tort Reform Assn., the Physician Insurers Assn. of America and the American Insurance Assn., among others.

“The Legislature’s repeated rejection of comparative fault constitutes a clear and affirmative policy decision that this court should respect,” the brief said.

Ruling’s potential impact on physicians

If the court changes contributory negligence, doctors and others can expect a rise in liability claims, said Douglas Biser, an attorney for the Soccer Assn. of Columbia.

“It would be bad for the state, bad for citizens and bad for business,” Biser said. “We don’t think there’s been any showing” that a need exists to change the law.

But no valid evidence suggests that lawsuits would increase if Maryland changes its doctrine, said Wayne M. Willoughby, past president and spokesman for the Maryland Assn. for Justice. The association wrote a brief in favor of changing the law.

Most “states have adopted comparative negligence and not one has returned to contributory negligence,” Willoughby said. “I think that speaks to whether there will be a litigation explosion. The sky will not fall if the comparative negligence doctrine is adopted in Maryland.”

Changing the doctrine would be a burden on doctors and the court system, said Ransom, of MedChi. Currently, a claim in which a patient is partly responsible for his or her medical outcome is quickly dismissed. Comparative negligence would mean more frivolous lawsuits making their way through the courts, leading to more time and litigation costs, he said. Insurance rates for physicians also would increase, Ransom said.

Contributory negligence “is a significant tort reform that makes a difference. This is a logical rule that makes sense,” he said. “From a fairness point of view, [why] should someone who contributed to their injuries be allowed to benefit from [them]?”

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