(The information on this site applies to Florida only)

Besides trying to show that there was no negligence, or no damage caused by the alleged negligence, the defense may argue that something or someone else actually caused the injuries. A defense that is very frequently encountered is to blame the patient for the problem. Blaming the patient takes many forms including arguing that the patient was too fat, or too thin, or had unusual internal anatomy, was a smoker, a drinker, a drug abuser, or did not take his medicine, or failed to tell the doctor something he should have, or failed to come back as instructed.  These defenses are an attempt to put the patient on trial instead of the doctor, or at least to try to get the jury to divide responsibility between the patient and the healthcare provider.  Sometimes it works; sometimes it backfires.

In Florida we have what is called a modified comparative negligence rule.  In general what this means is that if the jury finds the doctor sixty percent at fault and the patient forty percent at fault, then the patient may recover for sixty percent of her damages from the doctor. There are other important permutations to this rule in Florida and you should be sure to ask your lawyer about the issue of comparative fault and how that might apply to your particular case.