Against Medical Advice – Remember CPLR Article 14.

A recent article highlights why, when a patient signs out of a hospital ‘against medical advice,’ (“AMA”) counsel defending malpractice and personal injury lawsuits must raise culpable conduct/comparative negligence as an affirmative defense when interposing Answers on behalf of their clients.  As the article discusses, a 7-year retrospective study of over 80,000 discharged patients from a major New York metropolitan hospital demonstrates that patients who leave the hospital ‘AMA’ double their chance of dying or having an adverse health outcome within 30 days of discharge.  To put it otherwise, a patient increases his risk of future damage and or death by not following the advice of his medical providers in this setting.

Unlike a CPLR Article 16 defense (which, simply, is utilized to apportion fault between named and unnamed tortfeasors at trial, and does not have to be pled affirmatively because it has been found to be statutory in nature), culpable conduct, leading to a comparative negligence charge at trial compelling the trier of fact to compare the alleged negligence of the named parties to the action, must be pled affirmatively pursuant to CPLR Article 14.

Culpable conduct attributable to a plaintiff is governed by CPLR article 14-A. CPLR 1411, “Damages recoverable when contributory negligence or assumption of risk is established,” reads as follows:

“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”  CPLR 1412 provides that “[c]ulpable conduct claimed in diminution of damages . . . shall be an affirmative defense to be pleaded and proven by the party asserting the defense”.

Accordingly, it should be a “no-brainer” that in cases involving hospital care where a patient/future plaintiff/plaintiff’s decedent signs out ‘AMA’ and thereafter suffers a new injury or exacerbation of an existing injury due to care not rendered as a result of the patient not following the advice of his medical providers, the defense must be raised affirmatively lest defense counsel risks losing the ability to argue comparative fault at trial.

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