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Medical Malpractice

Common Defenses You May Encounter to Your Medical Malpractice Claim

February 28, 2023

Deciding to pursue a medical malpractice claim requires courage – after all, it isn’t easy to accuse someone you once trusted of violating their professional obligations. And while it can be empowering, many patients feel dejected when they learn that the doctor or other healthcare provider denies any wrongdoing, even when it is obvious. An experienced medical malpractice lawyer can predict which defenses they will raise so that you can be prepared and understand that it is simply a part of the process. 

Assumption of Risk

You may recall having signed some paperwork in agreeing to receive treatment. You may also recall your doctor explaining the potential risks and side effects commonly associated with the recommended treatment. This is commonly referred to as “informed consent” – the process by which the patient provides their consent upon being given enough information to make an informed decision. 

Healthcare professionals accused of medical malpractice routinely argue that you assumed the risk of whatever harm you have experienced by virtue of providing your informed consent. In other words, the argument is that you cannot sue them for medical malpractice because you knew the risks associated with the treatment. 

This defense is only valid if the following circumstances apply to your case: 

  1. The harm you suffered was included among the potential risks and side effects; or
  2. The healthcare provider provided meaningful information upon which you could make your decision. 

Issues involving informed consent are difficult precisely because informed consent is used as a liability shield. However, patients should be aware that the fact that they provided their informed consent does not mean that they do not have a claim. Your medical malpractice lawyer will know whether your informed consent could bar your claim. 

Contributory Negligence

After receiving treatment, your doctor likely provided you with extensive instructions concerning your physical limitations, post-treatment care, and follow-up treatment. For example, they may have informed you to not lift anything heavier than 10 pounds, to change any dressings twice per day, and that you need weekly physical therapy. While these instructions are intended to help you make a full recovery, they can be used against you if you pursue a medical malpractice claim. 

Your doctor may claim that your own actions contributed to or caused your current injury. For example, they may claim that you did not seek physical therapy, which is why you did not properly heal. They may claim that the infection you suffered was because you did not take proper care of the wound.

The contributory negligence defense is typically raised in situations where the patient is claiming that the treatment made their illness or injury worse or was completely unsuccessful. A medical malpractice lawyer will be able to assess whether this will be an issue in your case and help you understand your options. 


When doctors explain the potential risks and side effects associated with a particular treatment, they are not obligated to disclose every potential risk. Instead, they must disclose only those risks and side effects that are foreseeable. As a result, the doctor may claim that the harm you suffered was an unforeseeable risk. 

Substantial Minority

In determining whether medical malpractice has occurred, you must prove that the healthcare provider deviated from the standard of care. The standard of care is determined by evaluating what another healthcare provider with the same training, education, and experience would do in the same situation. In other words, the standard of care is determined by what most doctors would have done in your situation. 

Even if most doctors would do something different, there is almost never a total consensus in the medical profession on any particular case. As a result, the healthcare provider in your case may argue that a “substantial minority” would have done what they did. In other words, a significant number of healthcare providers would agree with their diagnosis or treatment, even though they may not be the majority. 

Determining whether a healthcare provider failed to meet the standard of care is a complex analysis. It becomes even more complex when the provider argues that their actions conform with a minority opinion that has significant support. If the standard of care is at issue in your case, we strongly recommend that you contact a medical malpractice lawyer to discuss your case. 

Speak with a Medical Malpractice Lawyer at Ragain & Clark Today

Medical malpractice cases are incredibly difficult and almost impossible for non-lawyers to pursue. If you have suffered harm as a result of medical malpractice, reach out to us to schedule a free consultation. We can be reached by calling 307-388-6400 (Worland) or 406-651-8888 (Billings) or by filling out our online contact form.


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