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Traditionally, one of the standard defenses to a negligence action, including a professional liability suit, has been the doctrine of contributory negligence. This doctrine precludes recovery of damages by a person whose injury was, in part, caused by his or her own negligence, even if the negligence of the person being sued was also a proximate cause of the injury for which recovery would otherwise have been allowed.
Courts have often been reluctant to apply the doctrine of contributory negligence because it can preclude recovery by a person whose negligence is substantially less than that of the person being sued. This is particularly true in professional liability actions due to the great disparity in medical knowledge between the patient and the physician. Thus, the defense of contributory negligence has been successful mainly in cases where the patient's conduct shows flagrant disregard for his own health or safety.
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Miller LJ. Comparative Negligence. JAMA. 1982;248(12):1443–1444. doi:10.1001/jama.1982.03330120015006
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