Rx & The Law

Comparative Fault

by Don R. McGuire, Jr., R.Ph., J.D.
General Counsel
Pharmacists Mutual Insurance Company

A prior article in this series discussed the elements of negligence which a plaintiff must prove in order to win their case. This article will discuss what occurs when the plaintiff themselves are also at fault in the case.

Under an older theory, this concept was called Contributory Negligence. This is when the plaintiff failed to act as a reasonable person and contributed to their own injury. We could see this occurring in pharmacy cases when the patient clearly recognizes that the tablets in the vial are incorrect, but takes them anyway. The impact that Contributory Negligence has on a case is dramatic. If the plaintiff contributed in any way to their injury, then they are entitled to no damages at all. There are 4 states and the District of Columbia that still use Contributory Negligence in some form. This harsh result may have been modified in those states.

The harshness of the Contributory Negligence concept has led the rest of the states to adopt a Comparative Negligence, or Comparative Fault, system. Under this concept, each party is assigned a percentage of fault with the total being 100%. If our patient above was assessed 10% of the fault in their case, then the verdict would be reduced by 10% and they could only collect 90% of their verdict. This is called Pure Comparative Negligence and is the law in 13 states. Remember the previous result under Contributory Negligence would be that the plaintiff would get nothing in this scenario.

One of the possible results under Pure Comparative Fault is that the plaintiff could be 95% at fault, but still recover 5% of the verdict in their case. This possibility has led some legislatures to modify Comparative Fault. This modification can take several different forms, but essentially bars recovery by the plaintiff if their percentage of fault meets or exceeds a certain threshold. In 11 states, this threshold is 49%, while it is 50% in 21 other states. In these jurisdictions, a plaintiff who is assigned 51% or more of fault will recover nothing. This is reminiscent of the results under Contributory Negligence.

In many ways, Modified Comparative Fault is a balancing act. The potential results under Contributory Negligence can be seen as unfair to the plaintiff who has only a small percentage of fault. On the other hand, allowing plaintiffs to proceed with cases where they have a high percentage of fault can be seen as unfair to defendants. Modified Comparative Fault attempts to balance the legal system by not encouraging potentially spurious claims, while at the same time, not discouraging legitimate claims.

In many pharmacy cases, the pharmacy or pharmacist wants to highlight the fact that the patient should have recognized that the tablets in the vial appeared different. This is an attempt to place some fault on the patient. While this argument is theoretically a good one, it does not work well in the real world. First, patients are almost trained to accept, without question, the endless sequence of different generic brands that are dispensed. Secondly, the plaintiff attorney is always quick to point out that if the plaintiff could have recognized the difference, then the trained professional should have been able to recognize the difference also.

Comparative Fault is not always important in pharmacy cases because patients are seldom in a position to seriously contribute to their own injury. However, it can be important in cases where the prescribing physician is a co-defendant. In these cases, fault can be apportioned between the patient, the pharmacy, and/or the prescriber. An example would be a case where the patient is prescribed a drug to which they are allergic. There could be fault apportioned to both the prescriber for prescribing inappropriately and the pharmacy for dispensing inappropriately.

The lesson for the pharmacist here is not that they know if Contributory Negligence or Comparative Fault applies in their state. They need to be aware that this concept exists and that in cases where negligence can be proved, there may be additional factors that will deny the plaintiff recovery or that may allow the pharmacy defendant to pay less than the total verdict. Also, be aware that the claims examiner and/or attorney working on your case will take these factors into account as they work to resolve your case.