Last week I discussed “standard of care,” one of the three essential elements of a medical malpractice claim. In addition to proving a breach of the standard of care, a patient plaintiff must also prove that the breach caused her to be damaged. Causation is a difficult element and one which confers an advantage upon healthcare providers who get sued.
Cause in a medical malpractice case must be what the law calls “proximate cause.” As set forth in the Arizona jury instructions for medical negligence, “Negligence causes an injury if it helps produce the injury, and if the injury would not have happened without the negligence.”
When doctors or nurses get sued, they always say the same two things, (1) “I didn’t do anything wrong”, and (2) “Whatever happened to you had already happened or was going to happen anyway.” For example, the doctor is alleged to have missed a cancerous tumor in the breast allowing it to spread to other parts of the body. The doctor will usually claim that the breast cancer had already spread by the time you came to see him. If the patient cannot prove that the delay in recognizing the breast tumor was the reason the cancer spread, the patient is going to lose the case. Cases like these often come down to a question of timing. No one knows exactly when the cancer spread outside the breast, but the longer the interval between the failure to detect the tumor and the time the cancer is actually discovered, the better the chance that a jury will conclude the delay in diagnosis made a difference.
Causation problems also arise out of the fact that the human body is an incredibly complicated creation. In order for us to wake up and function on a daily basis, thousands and thousands of processes must continually take place inside our bodies. Our kidneys must monitor and manage the fluid levels in the body and keep sodium in a healthy range. The liver must process all the things we have ingested. Our autonomic nervous system must keep our heart rate, breathing and blood pressure in acceptable ranges. These are just a few of the many processes always taking place. The processes are dynamic; what one does affects many others. When we get sick, these processes get interrupted. It is usually not a single process that gets interrupted but a number of them. So when things go wrong with our medical treatment it may not always be clear exactly where the problem lay and what caused the injury.
There are almost always multiple issues that the doctor or nurse can argue was the actual cause of the injury. This is particularly true in death cases in which there has been no autopsy. You may think that the medical records are clear about what happened and what caused the injury or death. However, regardless of what the medical records say, malpractice defendants will always argue that the injury was caused by something other than their care.
Treatments are not always successful. When a treatment fails, did it fail because the healthcare provider fell below the standard of care or did it fail because a certain percentage of these procedures are doomed to failure? A patient plaintiff had better have good proof that it was the breach of the standard of care that caused the injury or the jury will find for the doctor or nurse.
Infections can occur for many reasons and can occur even at the best hospitals and when the patient is being treated by the best doctors. It is almost impossible to prove that a post-operative infection was the result of medical negligence. There are too many possible sources of infection. Every responsible expert will have to admit that an infection can occur even in the absence of medical negligence. I will not bring a case that depends on proving medical negligence caused an infection. Every infection case I have ever brought involved a failure to recognize and treat the infection in a timely manner.
Plaintiffs are required to have evidence to support their claims. They must prove that it is more likely than not that the medical negligence caused their injury. Defendants, on the other hand, can offer explanations for the injury which need only be possible. Their explanations need not be probable. It is a poor defense expert indeed who cannot speculate about a number of things that may have gone wrong and caused the patient’s injury.
“Did the medical negligence make a difference and, if so, how big a difference?” This is a question we ask every time we look at a possible case. If we cannot prove that the medical negligence made a big difference, we cannot take the case. Close cases are almost always won by the healthcare provider. I don’t do a prospective client any favors if I accept a case with only a small chance of success. For both of our sakes, I need to identify and take cases in which causation is fairly clear. These cases are often few and far between.
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