What defense tactics should I expect?

Besides trying to show that there was no negligence, or no damage caused by the alleged negligence, the defense may argue that something or someone else actually caused the injuries. A defense that is very frequently encountered is to blame the patient for the problem. Blaming the patient takes many forms including arguing that the patient was too fat, or too thin, or had unusual internal anatomy, was a smoker, a drinker, a drug abuser, or did not take his medicine, or failed to tell the doctor something he should have, or failed to come back as instructed. These defenses are an attempt to put the patient on trial instead of the doctor, or at least to try to get the jury to divide responsibility between the patient and the healthcare provider. Sometimes it works; sometimes it backfires.

In Georgia we have what is called a modified comparative negligence rule. Ga. Code Ann. section 51-11-7 (1982). Under this doctrine the claimant cannot recover anything if he could have avoided the consequences of the defendant’s negligence. Otherwise, the claimant’s recovery is diminished in proportion to his degree of negligence.

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