In every medical malpractice case, the defense may argue that the patient’s own conduct contributed to the injury. Georgia’s comparative negligence statute, O.C.G.A. § 51-12-33, governs how patient fault affects the plaintiff’s right to recover damages. This statute establishes a modified comparative negligence framework that can reduce a plaintiff’s recovery proportionally or, if the patient’s share of fault reaches a defined threshold, bar recovery entirely. The definition of the standard of care against which the provider’s conduct is measured is a distinct subject addressed elsewhere.
The 50% Bar Rule
Georgia applies what is known as a “50% bar” rule. Under O.C.G.A. § 51-12-33, a plaintiff whose own fault is determined to be 50% or greater is completely barred from recovering any damages. If the plaintiff’s fault is less than 50%, the plaintiff may recover, but the total damages award is reduced by the percentage of fault attributed to the plaintiff.
This threshold is an important detail that distinguishes Georgia from some other modified comparative negligence states. In a “51% bar” jurisdiction, a plaintiff who is exactly 50% at fault may still recover (with a 50% reduction). In Georgia, exactly 50% fault bars recovery entirely. The difference of a single percentage point can determine whether a plaintiff receives a reduced damages award or receives nothing at all.
The practical implication for medical malpractice cases is significant. If the defense can persuade the jury that the patient’s own conduct was at least equally responsible for the harm, the plaintiff recovers nothing, regardless of the severity of the injury or the amount of proven damages. This makes the fault percentage a high-stakes determination that can overshadow even the most compelling evidence of provider negligence.
The Jury’s Role in Apportioning Fault
The determination of each party’s percentage of fault is a question of fact entrusted to the jury. The jury hears evidence about the conduct of the plaintiff, the conduct of each defendant, and, where applicable, the conduct of nonparties whose actions may have contributed to the injury. Based on that evidence, the jury assigns a specific percentage of fault to each person or entity whose conduct contributed to the plaintiff’s harm.
In the medical malpractice context, patient fault typically involves allegations that the patient failed to follow medical instructions, delayed seeking treatment, withheld clinically relevant information from the treating provider, or engaged in conduct that exacerbated the injury after the alleged malpractice occurred. The defense presents evidence of these behaviors and asks the jury to assign a portion of the total fault to the patient based on how significantly the patient’s conduct contributed to the outcome.
The jury’s apportionment decision is not limited to the plaintiff and the named defendants. Under O.C.G.A. § 51-12-33, the factfinder must consider the fault of “all persons or entities who contributed to the alleged injury or damages,” including nonparties. This means the jury may allocate fault percentages to individuals or entities who are not defendants in the lawsuit but whose tortious conduct is alleged to have played a role in causing the harm.
General Apportionment Concepts
Georgia’s apportionment framework has evolved through legislative amendment. The 2022 amendments to O.C.G.A. § 51-12-33 expanded the availability of nonparty fault allocation. Prior to these amendments, appellate courts had interpreted the statute in ways that limited apportionment when only a single defendant was named. The amended statute expressly permits apportionment in actions brought against “one or more persons,” allowing defendants to allocate fault to nonparties even when the defendant is the only named party.
The apportionment to nonparties does not result in a judgment against those nonparties. They are not defendants, they have no obligation to pay damages, and no money judgment is entered against them. The function of nonparty fault allocation is to reduce the named defendant’s proportional share of the total fault, and thereby reduce the amount of damages the defendant is obligated to pay. Each named defendant is responsible only for the percentage of damages equal to that defendant’s share of fault as determined by the jury.
This framework means that in a medical malpractice case involving multiple potential contributors to the patient’s harm, the jury may distribute fault across the plaintiff, the named defendants, and any designated nonparties. The final damages calculation then reflects the plaintiff’s proportional reduction (based on the plaintiff’s own fault percentage) and each defendant’s proportional obligation (based on that defendant’s fault percentage).
Consider a scenario where a patient undergoes treatment and is given specific post-treatment instructions. The patient does not follow those instructions, and the patient’s condition worsens. The defense argues that the patient’s failure to comply with post-treatment guidance was a substantial contributing factor in the negative outcome. The jury would be asked to determine what percentage of the total fault, if any, is attributable to the patient’s noncompliance, and what percentage is attributable to the provider’s alleged negligence. If the jury attributes 50% or more of the fault to the patient, the plaintiff recovers nothing. If the jury attributes less than 50% to the patient, the damages award is reduced by the patient’s fault percentage.
Verify current status of all statutes, rules, and judicial holdings at time of publication; legislative or judicial changes may have occurred.
Disclaimer
This content is produced exclusively for general informational and educational purposes. It does not constitute legal advice, does not create an attorney-client relationship, and should not be relied upon as a substitute for professional legal counsel tailored to specific facts and circumstances.
No reader should act or refrain from acting on the basis of this content without first seeking qualified legal advice from a licensed attorney admitted to practice in the relevant jurisdiction. Medical malpractice law involves complex, fact-intensive analysis that varies significantly depending on the specific clinical context, the parties involved, the applicable procedural rules, and the current state of statutory and case law at the time of the claim.
The statutes, rules, judicial holdings, and legal principles referenced in this content reflect the law as understood at the time of writing. Georgia law is subject to legislative amendment, judicial reinterpretation, and regulatory change at any time. Specific provisions discussed herein, including but not limited to damage cap rulings, tort reform legislation, statutes of limitation and repose, expert qualification standards, and procedural filing requirements, may have been modified, superseded, or reinterpreted after the date of publication. Readers must independently verify the current status of all legal authorities cited before relying on any information contained in this content.
This content does not cover every aspect of Georgia medical malpractice law. Certain topics have been intentionally excluded from the scope of this publication, and the inclusion or omission of any particular subject should not be interpreted as a statement about its legal significance or relevance to any specific case.
The examples and scenarios presented throughout this content are hypothetical illustrations designed to clarify legal concepts. They do not represent actual cases, real parties, or guaranteed legal outcomes. The outcome of any medical malpractice claim depends on the unique facts of that case and the professional judgment of the attorneys and experts involved.
Nothing in this content should be construed as an opinion regarding the merits of any potential or pending claim, as a prediction of any legal outcome, or as an endorsement of any particular litigation strategy.