Obviously, there is a considerable level of contributory negligence. Under the old contributory negligence rule, Hiles would be barred entirely since any negligence on the part of the plaintiff blocks recovery. Only three jurisdictions still apply this rule. There are two types of comparative negligence jurisdiction. Pure comparative negligence jurisdictions simply reduce the amount of the damages by whatever fault is attributed to the plaintiff. If the plaintiff is 90 percent at fault, she receives ten percent of the award. Pennsylvania uses a modified comparative fault rule where the plaintiff is barred if she is 51% or more at fault, but can recover if 50% or less at fault.
It will come down to that question of the condition and the delay in care. The delays in emergency rooms are a national disgrace. We have seen cases where people have died in emergency rooms and have not been found for hours. However, this condition was pretty far along when she arrived. There may be a collateral issue of a reduction in chances of survival. About 20 states allow patients to recover for lost survivability even if the person was less than likely to survive. The leading case in this “loss of chance” area is Herskovits v Group Health Cooperative. Pennsylvania is one of these states. That could change the equation for comparative negligence since the issue is the lost statistical chance for survival.
She was diagnosed with diagnosed with acute compartment syndrome.
Her lawyers insist that the condition could have been reversed or treated during that period of time at Uniontown Hospital in Pennsylvania.