Since the enactment of Article 14-A of the Civil Practice Law and Rules in 1975, the culpable conduct of a patient, including contributory negligence and assumption of the risk, has been an affirmative defense which can be used to reduce the recovery of the plaintiff by the percentage of the liability attributable to the patient. Since adverse outcomes are often multifactorial, careful attention needs to be paid to developing the evidence of culpable conduct which may benefit the defense. While it may not be within the comfort zone of defense counsel to prove an affirmative case while being accused of "blaming the victim," the proper representation of a medical malpractice defendant requires the ability to plead and prove the culpable conduct defense.
Finding Culpable Conduct
The issue of culpable conduct arises where there is any valid line of reasoning or permissible inferences which could lead rational individuals to the conclusion that the patient was negligent based upon the evidence.1 Although expert testimony is required to prove a departure from the standards of accepted medical practice by the defendant practitioners, the jury may determine without the need for supporting expert testimony that the patient was negligent.
