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Can I Still Sue for Malpractice If I Didn’t Follow the Doctor’s Instructions?

On Behalf of | May 22, 2022 | Medical Malpractice

You were treated by a doctor and something didn’t feel right, so you chose not to follow his or her instructions. Afterward, your condition worsened or did not improve. How will you know if you have grounds for a medical malpractice lawsuit? Working with a malpractice lawyer in Baltimore can help you leverage the details of your case to show that your injury was the doctor’s fault, not your own.

Can I Still Sue for Malpractice If I Didn’t Follow the Doctor’s Instructions?

If you can prove that the doctor’s error was the primary cause of your injury, you can still sue for malpractice even if you didn’t follow his or her instructions. Like any malpractice case, a jury will try to determine whether the doctor failed to provide the level of care he or she owed you. Next, it must determine whether or not the doctor’s negligence would have damaged your health even if you had followed the prescribed at-home care.

Failing to follow a doctor’s instructions can make a malpractice case harder to argue but not impossible to win. A skilled lawyer can emphasize your doctor’s role in causing the damages over the consequences of your at-home care, or lack thereof.

How Is Malpractice Determined?

Malpractice claims are taken very seriously under Maryland law. The average malpractice settlement is over $400,000, which exceeds the national average by almost 30%. While the payouts are usually large, the burden is on the plaintiff to prove that to doctor acted wrongly. Regardless of whether or not you followed the doctor’s orders, the following conditions must be established:

The Patient-Doctor Relationship

You can only sue a doctor for malpractice, and you must be able to show that the doctor was providing treatment in a professional context. If you are friends with a doctor, you cannot sue him or her for giving you casual advice outside of the office.

A Breach of the Standard of Care

The standard of care is a very important concept in malpractice claims. It establishes the minimal level of due diligence the doctor owes you, according to your condition. For example, in the case of surgery, sterilizing all surgical instruments prior to operating is part of the basic standard of care.

The standard of care can include taking other measures to maintain proper hygiene, conducting surgery, making diagnoses, ordering the appropriate diagnostic tests, and prescribing treatments. Each condition has its own standard of care that is determined according to standard practices within the same or similar medical community. Malpractice is essentially a breach of the applicable standard of care.


When faced with a malpractice case, a doctor’s attorney might argue that the patient’s injuries would have occurred even if the doctor had complied with the standard of care. If the patient’s condition is found to be untreatable regardless of the doctor’s actions, no compensation will be awarded. In other cases, the defense might argue that the patient did not properly care for his or her condition at home or that he or she contributed to their own injury in some way.

If you did not follow the doctor’s instructions, your attorney’s efforts will need to focus on proving causation. You will need to clearly separate the effects of the doctor’s negligence from the effects of your own decision not to follow the prescribed at-home treatment. Finally, you will need to show that the doctor’s negligence had a greater impact on your health.


If your malpractice case yields a payout, the amount of compensation you receive will be proportionate to your damages. Proving damages is part of the process that is used to determine whether or not malpractice occurred. Damages are the losses you experience as a direct result of your injury. They can include:

  • Medical expenses
  • Lost wages
  • Loss of the ability to work
  • Pain and suffering
  • Emotional distress
  • Loss of enjoyment of life

How to Sue for Malpractice

Selecting an Attorney

Both the field of medicine and the field of law are highly regulated, making malpractice one of the most complex areas. You will need to work with an experienced attorney who has dealt with many malpractice cases before. If you did not follow your doctor’s instructions, the skill of your attorney will be even more important.

Getting an Expert Witness

To sue for malpractice, you will be required to present the testimony of another physician who can verify that your original doctor did not comply with the standard of care. The expert testimony needs to take into account the fact that your at-home care departed from the original doctor’s directions. Normally, the expert witness will need to certify that your injury was more than 50% the doctor’s fault.

Preparing to Settle Outside of Court

The majority of malpractice cases settle without going to trial. Settling outside of court has several benefits. First, you will get your payout faster if you do not need to go through with a lengthy court battle. Second, malpractice cases that do go to trial only yield compensation 20% of the time. You can choose to work with a lawyer who has a stronger track record of success in court, but your chances of success still drop if you are unable to secure a settlement offer.

If you did not follow the doctor’s instructions, the defense might feel that their case is strong enough to go to court over. It is your lawyer’s job to negotiate with them using convincing evidence showing that you will be able to fight persuasively if the matter does go to trial.

Reviewing a Settlement Offer

Sometimes, a doctor or a hospital will try to cut their losses by attempting to convince you to accept a low settlement offer quickly. They might contact you soon after your treatment, before you have had a chance to speak with a lawyer.

You should be aware that once you have accepted a settlement offer, you will be unable to ask for more money in the future. Even if you end up spending additional money out of pocket to undo the doctor’s mistake, you will not be reimbursed for it. Your lawyer can help you review your offer against your damages to determine whether or not you should negotiate for a higher settlement amount.

Going to Court (If Necessary)

In a malpractice case, most defendants and plaintiffs prefer to settle outside of court. However, if you are unable to secure an appropriate settlement offer and can provide the support of an expert witness, you can still file suit. The odds of winning a court battle go up significantly when you work with a lawyer who has successfully argued cases similar to yours.

One benefit to going to court is that if you do receive compensation, it may be an amount greater than the amount you would have been offered in a settlement.

Build Your Malpractice Lawsuit With an Attorney in Baltimore

Saying that you didn’t follow the doctor’s instructions is just one of many statements the defense can try in a malpractice case. When you are seeking a high payout to compensate damage to your health, you need to work with a lawyer who can anticipate counter-arguments and effectively compile evidence to discredit them. We offer an exceptional team of Baltimore lawyers who will fight for you. To get in touch with a malpractice lawyer, contact Peter Angelos Law, today!