What should you do if you’re faced with a professional negligence or misconduct lawsuit? How do you fight it?

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What is negligence, how is it proved, and what are the main defenses to a professional negligence lawsuit?

What is negligence?

Negligence refers to when an individual or party who owe a duty of care to another acts in an irresponsible way and leads to harm or injury.

The main elements required to prove negligence include:

1. The defendant owed the plaintiff a duty of care. For example, a doctor owes a patient a duty of care.
2. That duty of care was breached and the defendant acted negligently.
3. The defendant’s negligence caused the plaintiff injury or damages.
4. The injuries and damages that the defendant caused could have reasonably been foreseen and prevented.

How to fight claims of negligence. There are the main negligence defenses:

The first way to fight a negligence lawsuit is to dispute one or more of the elements of a negligence claim. A defendant could claim that they didn’t owe the plaintiff a duty of care, that they did not breach the duty of care, the defendant’s injuries were not a result of the breached duty of care, or that the injuries could not have been reasonably foreseen.

Another way to fight it is to argue contributory negligence, which means that the plaintiff is, at least in part, responsible for the accident, injuries, or damages. Would the accident have occurred if the plaintiff had conducted themselves in a reasonable manner? The defendant can prove they were not to blame if the plaintiff acted negligently.

The courts may also, more likely, use comparative negligence and decide that both the plaintiff and the defendant contributed to the accident and apply a percentage of negligence to each.
The defendant may also claim that there was an assumption of risk involved. If the plaintiff knowingly engages in a dangerous or risky situation then they are less likely to able to obtain compensation because they essentially accepted the risks of the situation involved.

A defendant could also argue for modified comparative negligence, the plaintiff’s negligence is either equal to or less than that of the defendant’s negligence.

For more information about fighting professional negligence claims, send us a message.