discussion 5 31

In the United States, all medical malpractice law is litigated and resolved in one of two ways. Each state will choose which theory (only one theory is chosen to be used by each state) used to resolve all cases within their jurisdiction. The first is the theory of contributory negligence. In this theory, the original law (and ancient law derived from the Common law of England) states that, under this doctrine, if the patient contributed at all to the harm caused by the medical professional, then the patient was not entitled to any compensatory relief. In other words, no suit for damages would be allowed against the medical provider. This theory insisted that only a completely blameless patient should have recourse against a medical professional.

The second theory is the theory of comparative negligence. This is the more modern doctrine. Under comparative negligence all injured patients could still file a malpractice suit even if the patient contributed to the harm caused. Therefore, if a doctor was 50% at fault and the patient was 50% at fault, the patient could still recover 50% of the damages from the doctor. Each state decides if there is a maximum percentage for which the plaintiff can be responsible and still receive compensation.

Set forth two strengths and two weaknesses for each of these theories and choose which one you believe to be the most just and why.