Frequently Asked Questions About Contributory Negligence in Indiana Medical Malpractice Cases

Contributory negligence is a strict legal defense used by doctors and hospitals to avoid paying for damages they caused. Under this rule, if a patient’s own negligence contributed “even slightly” to their injury, the patient will be completely barred from recovering any compensation. McSwane, 916 N.E.2d at 911. Unlike other areas of personal injury law where fault is shared, under contributory negligence, if a patient is found even 1% at fault, they get $0. See id.

No, and the difference is extremely important under Indiana law.

Comparative Fault: In most injury cases (like car accidents), a plaintiff can still recover damages if their fault is not greater than the defendant’s fault (i.e., 50% or less). Ind. Code § 34-51-2-6. If a jury finds a plaintiff 20% at fault, their payout is just reduced by 20%. See Ind. Code § 34-51-2-5.

Contributory Negligence: This is an “all or nothing” rule that applies specifically to “qualified providers” under the Indiana Medical Malpractice Act.

“While a plaintiff whose own negligence may have contributed as much as 49 percent to her injury may recover under comparative fault from a defendant whose acts provided 51 percent, under contributory negligence a claimant whose own negligence was even slightly causal is barred from recovery.” McSwane, 916 N.E.2d at 911. However, not every medical provider is “qualified” under Indiana’s Medical Malpractice Act. See Ind. Code § 34-18-3-1. Stricter contributory negligence principles do not apply to “non-qualified” medical providers; instead, the comparative fault standard applies, whereby fault is apportioned among responsible parties. Ind. Code § 34-51-2-1 et seq.; see generally McSwane, 916 N.E.2d at 911 (discussing fault analysis under comparative fault versus contributory negligence and the applicability of contributory negligence only to qualified providers under the Medical Malpractice Act).

The burden of proving contributory negligence is on the defendant. Mem’l Hosp. of S. Bend, Inc. v. Scott, 300 N.E.2d 50, 53 (Ind. 1973). Whether a plaintiff was contributorily negligent and whether any contributory negligence proximately caused the claimed damages are generally factual issues to be resolved by the jury. Indianapolis Pub. Transportation Corp. v. Bush, 266 N.E.3d 719, 725 (Ind. 2025). And importantly, “whether contributory negligence or comparative fault applies, the party raising these defenses must still prove that the contributory negligence or comparative fault proximately caused the injury.” Abbas v. Neter-Nu, 261 N.E.3d 233, 247 (Ind. 2025). To constitute a bar to recovery, a plaintiff’s contributory negligence must proximately cause the claimed damages, id., it must unite in producing the injury and thus be simultaneous and cooperating with the fault of the defendant, and it must enter into the creation of the cause of action, Cavens v. Zaberdac, 849 N.E.2d 526, 529, 531 (Ind. 2006). Any negligence by a patient prior to or after receiving treatment cannot support a contributory negligence defense. Id. at 530, 532 (pre-treatment excessive use of medication and delay in seeking treatment not contributory negligence); Sawlani v. Mills, 830 N.E.2d 932, 942-43 (Ind. Ct. App. 2005) (finding patient’s failure to obtain a second mammogram in one year as instructed was “wholly subsequent” to the defendant’s malpractice and therefore contributory negligence was inapplicable).

“A court should find a plaintiff contributorily negligent if [their] conduct falls below the standard to which [they are] required to conform for [their] own protection.” McSwane, 916 N.E.2d at 911. “The general rule on the issue of the plaintiff’s contributory negligence is that the plaintiff must exercise that degree of care that an ordinary reasonable [person] would exercise in like or similar circumstances.” Scott, 300 N.E.2d at 56. However, if a plaintiff suffers infirmities affecting [their] ability to function as an “ordinary reasonable [person],” “[t]he proper test to be applied in such cases is the test of a reasonable [person] under the same disabilities and infirmities in like circumstances,” where “mental condition and/or physical incapacities are to be considered.” Id. “A person is contributorily negligent if they fail to exercise the degree of care that an ordinary, reasonable, and prudent individual would exercise for their own protection and safety when faced with similar circumstances.” Bush, 266 N.E.3d at 727.

No. A patient does not have a duty to diagnose their own condition and can reasonably expect the physician to ask proper questions. Fall v. White, 449 N.E.2d 628, 634 (Ind. Ct. App. 1983). A patient has a right to rely upon and trust their physician because the patient lacks the knowledge, skill, and experience of a physician in those areas which are vitally important to the patient. See Weinstock v. Ott, 444 N.E.2d 1227, 1236 (Ind. Ct. App. 1983) (noting the fiduciary nature of the physician-patient relationship); see also Ind. Model Jury Instruction 1523.

Defense attorneys often try to win “summary judgment”—getting the case dismissed before a jury ever hears it—by claiming the patient was negligent as a matter of law. However, summary judgment is a “blunt instrument” potentially preventing parties from resolving their case at trial and having their day in court. Glon v. Mem’l Hosp. of S. Bend, Inc., 111 N.E.3d 232, 237 (Ind. Ct. App. 2018). Summary judgment is not a summary trial and is not appropriate merely because the non-movant appears unlikely to prevail at trial. Hughley v. State, 15 N.E.3d 1000, 1003-1004 (Ind. 2014). Medical malpractice cases based upon negligence are rarely appropriate for disposal by summary judgment. Mills v. Berrios, 851 N.E.2d 1066, 1070 (Ind. Ct. App. 2006). Summary judgment is only appropriate if the designated evidence shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Glon, 111 N.E.3d at 237. “An issue is ‘genuine’ if a trier of fact is required to resolve the truth of the matter; a fact is ‘material’ if its resolution affects the outcome of the case.” Id.

The party moving for summary judgment has the burden of making a prima facie showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Whether a plaintiff was contributorily negligent and whether any contributory negligence proximately caused the claimed damages are generally factual issues to be resolved by the jury. Bush, 266 N.E.3d at 725. It is only when the facts are undisputed and only a single inference can reasonably be drawn therefrom that contributory negligence becomes a question of law. Id. All factual inferences are construed in favor of the non-moving party, and all doubts as to the existence of a material issue are resolved against the moving party. Kovach v. Caligor Midwest, 913 N.E.2d 193, 197 (Ind. 2009). “Summary judgment should not be granted when it is necessary to weigh the evidence.” Hughley, 15 N.E.3d at 1005.

Virtually all reported medical malpractice cases in Indiana dealing with contributory negligence have revolved around whether the defense was applicable and/or whether there was sufficient evidence to submit the defense to the jury. See, e.g., Cavens, 849 N.E.2d at 530, 532 (contributory negligence not applicable to pre-treatment negligence); Scott, 300 N.E.2d at 58 (affirming grant of new trial to patient based upon patient’s lack of contributory negligence); Piatek v. Beale, 994 N.E.2d 1140, 1148 (Ind. Ct. App.), aff’d on reh’g, 999 N.E.2d 68 (Ind. Ct. App. 2013) (contributory negligence instruction not warranted despite patient’s non-disclosure of medical information); Johnson v. Wait, 947 N.E.2d 951, 959 (Ind. Ct. App. 2011) (there was sufficient evidence to support contributory negligence instruction where patient refused examination); Joyner-Wentland v. Waggoner, 890 N.E.2d 730, 736 (Ind. Ct. App. 2008) (contributory negligence instruction not warranted even though patient gave incorrect information); Foster v. Owens, 844 N.E.2d 216, 222 (Ind. Ct. App. 2006) (defendant not entitled to contributory negligence instruction); Sawlani, 830 N.E.2d 932 at 943 (contributory negligence inapplicable to post-treatment negligence); Faulk v. Nw. Radiologists, P.C., 751 N.E.2d 233, 242 (Ind. Ct. App. 2001) (evidence was sufficient to support contributory negligence instruction where patient unreasonably refused to return to doctor during time he claimed doctor was negligent); King v. Clark, 709 N.E.2d 1043, 1048 (Ind. Ct. App. 1999) (evidence was sufficient to support contributory negligence instruction); Smith v. Hull, 659 N.E.2d 185, 191 (Ind. Ct. App. 1995) (evidence was sufficient to support contributory negligence instruction); Harris v. Cacdac, 512 N.E.2d 1138, 1140 (Ind. Ct. App. 1987) (contributory negligence not applicable to post-surgery negligent conduct); Fall, 449 N.E.2d at 634 (jury properly instructed on contributory negligence where patient who died of heart attack failed to submit to blood test, failed to return for evaluation as instructed, failed to report chest pain, and failed to go to the hospital for chest pain).

However, in McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 911 (Ind. 2009), the Indiana Supreme Court affirmed a trial court’s grant of summary judgment finding a patient, Malia Vandeneede, contributorily negligent as a matter of law. Id. Malia was killed by her ex-husband, Monty Vandeneede, with whom she still lived, shortly after leaving a hospital where she sought treatment for lacerations to her thigh and hand. Id. at 908. Malia told hospital staff and a surgeon that she had been thrown from a horse into a brush pile. Id. A nurse suspected Malia may have been a victim of domestic assault, and when Monty’s attention was diverted, the nurse directed Malia’s attention towards a domestic violence form, but Malia violently shook her head. Id. There were times where Malia was alone with her providers. Id. at 909. Malia’s mom came to the hospital and told a nurse she believed Malia had been assaulted and she called several law enforcement agencies, who did not respond, and hospital security, which conducted a weapons search and sobriety test on Monty. Id. While Malia had received pain medication and been under general anesthesia while in the hospital, Malia was described in the record as “alert and oriented,” “very aware [of] what was going on,” and “very capable of making her own decisions,” against which there was no contradicting evidence. Id. at 911, 913. As Malia was leaving the hospital, a nurse told her she did not need to leave with Monty, and Malia’s mother pleaded with her not to leave with Monty, with Malia responding, “in no uncertain terms,” that she wanted to leave with Monty, saying “[s]tay out of our business.” Id. at 909. The Court, with two Justices dissenting, concluded “Malia’s insistence on leaving with Monty in the face of offers by hospital staff and pleas by her own mother was negligence that contributed to her injury.” Id. at 911.

Conversely, in Weinstock v. Ott, 444 N.E.2d 1227 (Ind. Ct. App. 1983), the Indiana Court of Appeals affirmed a jury verdict for a patient’s estate finding the patient, Norma Ott, was not contributorily negligent as a matter of law. Id. at 1240. The estate alleged Norma’s family physician, Dr. Adolf Weinstock, failed to appropriately refer Norma for a diagnostic consultation when he was unable to discover the cause of her disorder, which was ultimately diagnosed as ischemic bowel disease and which ultimately caused Norma’s death. Id. at 1229, 1232. After the jury verdict for Norma’s estate, Dr. Weinstock appealed and argued Norma was contributorily negligent as a matter of law for failing to follow the directions of another doctor and for discharging herself from a hospital against medical advice. Id. at 1239. The Court ruled Norma’s conduct did not establish contributory negligence as a matter of law, as this was a question of fact for the jury. Id. The Court found the jury could have reasonably inferred that Norma was not unreasonable in returning to the care and course of treatment of Dr. Weinstock because he was her long-time family physician and most familiar with her history and ailments, she had poor health, and the other providers’ treatment had been more of the same and not any more successful. Id.

You can contact the lawyers at Barsumian Armiger Injury Lawyers to get help in your Indiana medical malpractice case. Our firm handles complex procedural filings, such as responding to motions for summary judgment where defendants allege contributory negligence.