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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.

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