Assumption of the Risk and Contributory Negligence Defenses in Medical Malpractice Cases

Summary

This practice note provides health lawyers with an overview of the elements of and considerations regarding the assumption of the risk and contributory negligence defenses in medical malpractice actions. It addresses both express and implied assumption of the risk defenses. It supplements its discussion of contributory negligence with analyses of the avoidable consequences rule and the particularly susceptible victim doctrine, as well as reviews plaintiff's failure to follow medical advice, give an accurate medical history, or timely seek treatment.