Attorneys who represent victims of medical malpractice cases routinely encounter a comparative negligence defense raised by the attorneys representing the health care provider. This defense is designed to allow a jury which first determines that the defendant was at fault, to also decide whether the patient was negligent in some way, and if so, to assign a percentage of fault to the patient. Strategically, defense attorneys have long used the comparative negligence defense to present unflattering evidence about the patient to the jury. By so doing, however, there was some thought that the jury might “split the baby” by assigning blame to both the defendant and the patient in cases that might otherwise result in a defense verdict if the choice was all or nothing. As a result, there has been an increasing trend of defense lawyers raising the issue of comparative negligence, presenting the unflattering evidence against the plaintiff at trial and then dropping the defense just before the jury deliberates. This strategy, when employed, allows the defense to first blame the victim and then remove the risk of a compromise verdict by dropping the defense at the end of the case.
In Hartong v. Bernhart, cite the Fifth Disctrict Court of Appeal recently considered the fairness of this strategy and the unfair advantage its use gave the defense. The patient in the Hartong case died after acquiring MRSA lobular necrotizing pneumonia. A medical malpractice case was brought alleging her death was caused by the negligence of care provided by William Bernhart, M.D., Roy Liptrap P.A. and Citrus Emergency Services. The Defendants asserted a comparative negligence defense, and introduced evidence at trial from DCF reports relating to the patient’s drug and alcohol use as well as allegations of domestic violence with the father of her children. After the evidence was presented, but before the jury was instructed as to the law, the Defendants dropped the comparative negligence defense which would keep the issue off of the verdict form. The Plaintiff’s attorney argued that it would be unfairly prejudicial to prevent the jury from accounting for the alleged negligence on the part of the plaintiff after being presented with evidence of such negligence during trial. As such, the Plaintiff asked the Court to conform the Complaint to the evidence so that the verdict form would allow the jury to consider whether or not the plaintiff was comparatively negligent and if so, to what extent. The trial court denied the Plaintiff’s request and the jury returned a verdict in favor of the Defendants by answering “No” to the questions of whether there was negligence on the part of Defendants which was a legal cause of death to the patient.
On appeal, the plaintiff argued that by presenting evidence relevant to drug and alcohol use without permitting the jury to consider comparative negligence, the defense created a “take it or leave it” situation similar to contributory negligence which is contrary to Florida law and public policy. The appellate court agreed finding that because the defendants raised the issue of Plaintiff’s alleged fault throughout the trial, including during closing arguments, the Plaintiff should not have been precluded from pleading comparative negligence after the defense abandoned it as a defense. The Court also rejected the Defendant’s argument on appeal that the verdict cured any error because the jury found the defendants were not negligent. The Court reasoned that the verdict form as constructed did not separate the concepts of negligent conduct and legal cause, thus making it an all-or-nothing approach akin to the long overruled defense of contributory negligence. As such, it acted as a complete bar to Plaintiff’s recovery.
As a result of the Hartong ruling, Defendants should no longer be able to strategically remove the issue of comparative fault from the jury’s consideration after presenting evidence of a plaintiff’s allegedly negligent behavior. A plaintiff faced with such a strategy can move to amend the Complaint to conform to the evidence and allege the Plaintiff’s comparative fault. Because this will ultimately result in the verdict form and instructions being essentially the same as if the defense maintained the defense until the end, Defendants will not have the advantage of both presenting unflattering evidence of the plaintiff’s behavior and an all-or-nothing verdict. As such s Defendants will likely only make the plaintiff’s conduct the centerpiece of their defense in cases where they actually want the jury to account for it in the verdict.