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Can patient stupidity ever be a defense for medical malpractice?

Fort Lauderdale, FL |

Will the defense ever say to the patient "well you were stupid to trust this doctor and stupid not to get a second opinion" don't you know about he "art of diagnosis" even though every GOOD doctor I speak to says that good medicine should try to be as little of an art as possible.

Attorney Answers 6


  1. Medical malpractice is based on whether the doctor performed up to the standard of care, i.e., how would a reasonably prudent doctor have have performed under the circumstances.

    My answer to your question does not create an attorney-client relationship.


  2. In defending the doctor anything is possible. They want to divert attention away from the doctor's actions and towards what you may have done wrong.

    Good luck.

    DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being provided for informational purposes only because the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship.


  3. I've never heard of "patient stupidity" as a defense. I've had cases in which the defense said my client failed to follow doctor's orders/recommendations, or even cases where they said the patient contributed to his own injuries by doing X or not doing Y.


  4. Just based upon a quick review of your question, it seems like there have to be occasions when it could, or, at least, should be.

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  5. In the states where I practice, there is something called contributory negligence or comparative fault. The plaintiff's own mistakes can mitigate the errors of the defendant(s). I suppose this can be called a patient's "stupidity." An example might be a plaintiff that chooses not to return promptly to an ER when their condition dramatically worsens, etc.


  6. I'll say this, I have never been in trail where the defense dared to call my client stupid.
    A liar, in so many words, in some cases. But to call a party stupid is to invite a punishing verdict against you. Ergo, the McDonalds coffee spill case.

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