“Proximate cause,” on its face, seems like a pretty straight forward concept. In medical malpractice lawsuits, the question of proximate cause, and whether the plaintiff can provide the jury with the necessary facts to support proximate cause, is critical. In order to establish proximate cause, the question, “What event, (or, as is often the case in medical malpractice cases, the absence of an event) caused the chain of events that lead to the undesirable outcome?” In medical malpractice cases, this is most often established through the use of expert testimony.
Depending on the jurisdiction, it is possible the plaintiff will be required to file an affidavit of merit either simultaneously with the filing of the suit, or shortly thereafter. This affidavit, typically signed by a medical professional, but sometimes signed by the lawyer as well, asserts, among other things, a nexus between the injury sustained by the plaintiff and the failure to follow the requisite standard of care by someone who owes a duty.
The Three Pillars
In every medical malpractice case, the plaintiff must establish:
- A duty of care between caregiver and patient
- An injury
- The caregiver’s failure to provide care to the level expected of a reasonable medical professional treating such a patient caused the injury (proximate cause)
Medical malpractice claims are complicated, because in many cases, a team of professionals contributes to the care of the patient. Every hospital case involves doctors, nurses, specialists, and others providing care. Miscommunications can occur both in hospital settings and during outpatient care. A missed email alerting a physician about an abnormal pap smear, a non-specific but abnormal finding on an X-Ray that is observed but not followed up on, are just a few of the types of opportunities for professional teams to somehow drop the ball, and potentially cause an injury down the line.
Challenging the Assertion that the Information Would Not Have Changed the Course of Treatment
In cases involving a team of caregivers, often the defense asserts in response they would not have acted any differently in their approach or level of care, even if they had known about the incident which later led to an injury or death. Some courts have found this “breaks the chain of causation,” if the proper conveyance of information would not have changed the approach.
However, this is perhaps one of the times when an expert is most needed. An expert can offer information to the fact finder about the relevant standard of care and, in the right case, establish a reasonable medical professional would indeed have changed course, if they knew of the abnormal finding.
Challenging the Assertion that Deviation from the Standard of Care Did Not Change the Course of Treatment
In some cases, the defendants may admit the deviation in the standard of care, but still defend the suit, arguing the deviation was of no consequence in the scheme of things. For example, consider a case wherein a doctor fails to identify a lump in a patient’s breast or fails to recognize it as cancerous. Imagine 8 months after the initial opportunity to identify the lump, the cancer is discovered. The patient, due to family history and other factors, has a mastectomy. If the treatment for the lump, given the family history, would have been a mastectomy even if found at the earliest opportunity, the defendants will argue the failure to diagnose in a timely fashion was not the proximate cause of the injury (the mastectomy).
This, too, is a case wherein having an expert qualified to testify about alternate treatments and the standard of care is critical to the plaintiff’s case. With this type of case, there is no question the medical professionals failed to diagnose properly and in a timely fashion. Nonetheless, without an expert witness to tie the cause of the injury to the professionals’ failure, the case is lost.
Res Ipsa Loquitur – The Thing Speaks for Itself
There are some cases where, arguably, one would not need an expert to explain to the jury why something rises to the level of medical malpractice. For example, if a medical instrument, such as a clamp or a sponge, is left inside a patient following surgery, most people would agree this is evidence someone on the medical team was negligent. Surgical instruments and materials should be removed from a patient prior to closing the incision. Expert testimony is permitted under the Federal Rules when the expert’s “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact at issue.” Fed. R. Ev. 702. Does a jury really need assistance in understanding the evidence in such a case?
Leaving a sponge inside a person post surgery is not the only example of a time where one might, strategically, choose not to call an expert. Other situations where the evidence speaks for itself include situations where:
- The precise cause of the injury is unknown
- Said injury wouldn’t occur without the absence of negligence
- The injured person was not responsible for the sustained injury
- Medical personnel were in exclusive control of the instrumentality which caused the injury
- There is no other cause for the injury
Sometimes, attorneys choose not to call an expert as a cost saving measure. However, they then run the risk of leaving 12 jurors to their own devices, speculating as to whether a sponge left inside a person was, indeed the proximate cause of a subsequent infection. Even when things may appear obvious, the use of an expert may be a good idea. The alternative is to risk a directed verdict for the defendant, or a runaway jury speculating about medical issues.
Experts and Proximate Cause
Because proximate cause is a fundamental element of any medical malpractice case, expert testimony should be considered in every case. The approach the expert takes may vary a bit, based on the defense presented. However, the fundamental facts – that injury was caused by the caregiver’s failure – remain constant.
 The following state statutes govern the submission of an affidavit of merit, also referred to in some states as a certificate of merit, in some form or another: Ariz. Rev. Stat. Ann. §12-2603; Colo. Rev. Stat. §13-20-602; Conn. Gen. Stat. §52-190a; Del. Code Ann. tit. 18, §6853; Fla. Stat. §766.104; Ga. Code §9-11-9.1; Hawaii Rev. Stat. §671-12.5; Ill. Rev. Stat. ch. 735, §5/2-622; Md. Courts & Judicial Proceedings Code Ann. §3-2A-04; Mich. Comp. Laws §600.2912d; Minn. Stat. §145.682; Miss. Code Ann. §11-1-58; Mo. Rev. Stat. §538.225; Nev. Rev. Stat. §41A.071; N.J. Rev. Stat. §2A:53A-27; N.Y. Civil Practice & Rules Law §3012-a; N.D. Cent. Code §28-01-46; Ohio R. Civ. P. 10; Okla. Stat. tit. 12, §19.1; Pa. R. Civ. P. 1042.3; S.C. Code Ann. §15-36-100; Tenn. Code Ann. §29-26-122; Tex. Civil Practices & Remedies Code Ann. §74.351; Utah Code Ann. §78B-3-423; Vt. Stat. Ann. tit. 12, §1042; Va. Code §8.01-20.1; Wash. Rev. Code §7.70.150; W. Va. Code §55-7B-6; Wyo. Stat. §9-2-151.