Seeking help from doctors means you put your trust fully in their practice. You expect that their experience can address your condition and find ways to cure it. But what happens when these trusted professionals become the reason for your worsened state?
Whether you are dealing with a devastating birth injury, an agonizing delayed cancer diagnosis or a severe medication error, you can file a medical malpractice claim against the healthcare physician. But before you do so, it is vital to understand Kentucky’s pure comparative fault system.
What pure comparative fault means under Kentucky law
In Kentucky, the courts navigate medical malpractice claims with the pure comparative negligence rule. This means you can still recover compensation even if you are 99% responsible for the harm. However, you face reductions in your award, depending on the assigned percentage of fault.
How the courts assess the fault of the involved parties
Under Kentucky Law, the judge or jury has to weigh a physician’s negligence against any mistakes you may have made. Assessing fault generally includes these two factors:
- Nature of the conduct: The actions of both parties and whether they were reckless or completely accidental
- Causal relation: How much those actions actually caused the final damage
Say that you recently had a complex knee surgery. The surgeon accidentally damages a nerve during the procedure due to a lack of proper care. Following the surgery, the doctor gives strict instructions on attending physical therapy three times a week and avoiding putting weight on the leg for a month. However, you ignore this and attend a concert, severely tearing the healing tissue.
Medical matters tend to be too technical for a judge or jury to understand. Under Kentucky law, expert testimony is generally mandatory to establish the standard of care and causation, unless the medical error is so clear that a layperson can recognize it without technical explanation.
Depending on the assessment, they can assign a higher percentage of fault to either party. A surgeon can be 30% at fault for the initial nerve issue, but you can bear 70% responsibility for neglecting recovery instructions.
When you can be partially at fault
Causing a mistake during a birth delivery or surgical procedure as a patient can be rare. However, insurers, courts and defense teams may argue that your actions or a lack of them contributed to the final severity of your medical injury. These can include:
- Failing to disclose critical medical history to a practitioner
- Not following the aftercare instructions, such as failing to take the correct medication dose or refusing to change bandages
- Missing follow-up appointments and diagnostic tests
- Refusing to disclose other medications or substance use
As a patient, you have a legal duty to minimize financial and physical harm. If a doctor makes a mistake, but you refuse a simple corrective procedure that would fix it, the court can penalize you heavily for failing to mitigate the damage.
For a judge to legally assign blame to you, there must be sufficient evidence that you breached your duty to act reasonably. Defense teams must also prove that these factors have a direct cause of your harm.
What you can recover in a medical malpractice claim
No amount of money can replace the pain you experienced due to an injury caused by medical negligence. To ensure you can recover properly and settle all bills you paid out of pocket, your medical malpractice claim compensates these damages:
- Economic damages: Expenses and losses you can quantify and prove with a paper trail, such as past and future medical bills, lost wages and loss of earning capacity
- Noneconomic damages: Nonmonetary losses, such as pain and suffering, loss of enjoyment of life and physical impairment
The Kentucky Constitution explicitly prohibits the state legislature from putting a cap on economic or noneconomic damages. However, the final award amount is determined by the jury based on evidence and cannot exceed the damages you explicitly claimed in your filing.
How fault reduces your settlement amount
While Kentucky’s pure comparative fault system allows you to recover compensation despite being partially at fault, you do not receive the full amount of the final award. Your assigned percentage of fault subtracts the settlement amount.
For example, the total calculated damages are $500,000. The courts find you 10% at fault and the medical practitioner 90% at fault. Your final financial recovery is $450,000.
If the courts find you at greater fault than the doctor, the computation is the same. Say you are 60% responsible for your harm. With a $500,000 settlement amount, your final recovery will be $200,000.
Why acting promptly matters in Kentucky
Kentucky has a stringent rule for medical malpractice claims. You only have one year from the date you discovered or should have discovered the injury to file a formal lawsuit.
Although you need time to recover from your injury, prompt action can help you gather evidence to build your claim. Delaying your filing date can bar you from seeking compensation.
What to do when the blame shifts to you
Medical malpractice claims can be complex because you might face a hospital’s aggressive defense team or an insurance adjuster. They may use tactics to try to shift most of the blame to you, pushing you to accept unfair settlements.
While this can be intimidating, understand that you have options to protect your rights. Seeking legal counsel from a medical malpractice attorney is wise.