Posted by Bill Sandweg on 13 September 2021.
Last week I wrote about the standard of care. Standard of care is the first element a patient must prove to win a medical malpractice case. The second element of proof is that the breach of the standard of care “caused” an injury. Causation requires, not only that the breach of the standard of care cause the injury, but that the injury would not have occurred in the absence of the breach.
Causation in medical malpractice cases is a difficult element of proof. One of the reasons it is difficult is the complexity involved in medicine. Things are not always crystal clear. When sued, doctors or other health care provider often offer up a number of explanations for the injury the patient suffered.
One of the usual claims is that the injury was just a bad result. No one in medicine guarantees a good result. In fact, before you undergo a procedure, you will be asked to sign a consent form that lists many, many things that can go wrong during or after the procedure. These things are often referred to as “risks of the procedure.” Sometimes the injury you suffer may be on that list. However, just because an injury is one that can occur, even if no one is careless, does not necessarily mean that in your case it wasn’t the result of a breach of the standard of care.
Even if your injury is not on the list of “risks of the procedure” the defendant health care provider often will argue about exactly what the injury was and why it happened. In death cases, for example, in the absence of an autopsy, there will almost always be disagreement over the cause of death. It doesn’t matter what the death certificate says, as that it not binding on the parties. You say your loved one died because of a mistake the surgeon made during the surgery. They come back and claim that your loved one died of a heart attack that was unrelated to the surgery. When there has been no autopsy, there is no good way to prove that the death was due to a surgical mistake.
Another problem with causation arises out of the fact that the reason you are seeing a doctor or other health care provider in the first place is that you are sick or have a condition that requires medical treatment. A causation argument I often see is that what happened to you was unavoidable or had already occurred before you even reached the doctor. I see this often in missed cancer diagnosis cases. My client has been diagnosed with lung cancer that has spread throughout the body. We look at the past medical records and find that the cancer appears on an x-ray that was done three years ago but no one noticed the tumor at that time. Our position is that, had the lung cancer been noticed and treated at that time, it would not have spread. The argument from the defense is that it had already spread by the time of the x-ray. Alternatively, they argue that the cancer was a very aggressive form that was going to spread no matter what treatment was given. They say it was inevitable that the cancer would spread throughout the patient’s body.
Even if everyone is in agreement about the nature of the injury, the provider defendant will argue that it may have been the result of five or ten different causes that are not related to the provider’s care. For example, the stroke the patient suffered after surgery, which we claim was the result of a lack of oxygen during surgery, they claim was the result of blood clots in the arteries of the neck.
These causation issues are always hard fought. They always involve dueling expert witnesses. If you do not have a lawyer who understands the medicine and is able to effectively cross-examine the expert witnesses for the defense, you will have no chance of winning your case.