Is Contributory Negligence a Concern With Pharmacy Error Lawsuits in Maryland?

The answer to this question is a qualified, Yes. The reason being is that “contributory negligence” should always be considered when undertaking any personal injury action in the state of Maryland. That said, when it comes to medical malpractice and pharmacy error cases, it may be more difficult for a defendant to use a contributory negligence strategy to show that the victim contributed to the events that let to their injuries, but it is still a possibility.

For anyone who does not know about Maryland’s contributory negligence rule, it is the legal doctrine that states if an individual is injured in part due to his own negligence (that is, his negligence "contributed" in some manner to the accident in question), that injured party would not be entitled to collect any damages from the defendant(s) being sued for causing the accident.

In most other states, when a defendant is found liable for negligence, courts determine damages by apportioning fault between the defendant as well as the plaintiff, who may or may not have had some responsibility for the accident. However, under Maryland’s doctrine of contributory negligence, any finding of fault on the plaintiff’s part precludes the recovery of any and all damages.

In Maryland, for example, if a motorist sues a drunk driver for damages suffered when the defendant ran a red light while intoxicated, but the victim was shown to be talking on his cellphone at the time of the collision, the defense can argue that the plaintiff was likely distracted and therefore responsible in some way for the resulting crash. In such a case, even if the defense can prove the plaintiff had just one percent of the responsibility for the accident, Maryland law says the case must be thrown out on the grounds of contributory negligence. This seems rather unfair, but unfortunately it happens quite often in courtrooms all across our state.

All that said, a Maryland pharmacy misfill lawsuit is hardly the same as an auto injury claim, and it is safe to say that Maryland courts don’t encounter the application of the contributory negligence rule by defendants in medical malpractice cases as often as they do in other personal injury lawsuits, such as car accident claims or slip-and-fall cases. This is not to say that it never occurs, but most skilled personal injury attorneys will probably not take on a case where there is a strong likelihood of contributory negligence being used against a plaintiff.

It is important to point out that in cases where a minor child or infant has been injured or has suffered fatal complications as a result of a prescription misfill, Maryland law makes the use of a contributory negligence defense almost impossible to pursue since young children are unable to discern whether their medication has been filled correctly and parental negligence cannot be imputed onto a minor plaintiff.

At Lebowitz & Mzhen, LLC, we have many years of experience litigating medical malpractice cases as well as pharmacy misfill lawsuits. Because Maryland’s legal statutes treat contributory negligence as an affirmative defense, defendants in personal injury or wrongful death cases have the burden of proving that the victim had some degree negligence. Fortunately, it can be somewhat difficult to prove that a victim of pharmacy misfill, who is likely a layperson, should have realized the medication in his or her pill bottle was not the correct drug.

Because these cases can be complex, if you or someone you care about has suffered debilitating injuries as a result of pharmacy error, you owe it to yourself and your family to seek legal counsel as soon as possible. Our skilled personal injury attorneys are ready, willing and able to discuss your prescription error claim. We can explain your rights under Maryland law and help you to gain the compensation you deserve. Please contact us to arrange for your free, no-obligation initial consultation.