Medical Malpractice Causation Plus Defenses
In “legal lingo” causation means proximate cause. The word proximate technically means “near”. As such the way to think of
proximate cause is that it is the near cause. In contrast is the remote cause. This concept is explained in a bit more detail in my book entitled Law 101.
The example that I gave in that book of proximate cause is one where a father is playing a game of catch with a child. A father throws the ball a bit too hard. The ball goes through the neighbor’s window into the back of the house onto the back porch. It knocks over the metal grill which then rolls down the hill. The grill strikes another neighbor in that downhill yard. Finally that other neighbor dies from the impact.
The question then arises as to whether the father’s fault is a proximate cause of the neighbor’s death. That question probably would be up to a jury to decide. However it’s difficult to see that the father’s conduct is the proximate or near cause of the neighbor’s death. The father had no reason to expect that the ball he was throwing would go through the neighbor’s house from front to back. He had no reason to expect the death of the downhill neighbor. As a result that death is not something that is reasonably foreseen. Therefore probably there is no proximate cause.
If on the other hand the ball had injured the homeowner who was standing in the front window there probably would be a finding of proximate cause. That can be foreseen. In other words the father’s conduct was a proximate cause of that neighbor being injured. Call, or contact us for a free consult.
Causation May Involve What is Foreseen and Other Concepts
In medical malpractice cases what is to be foreseen or should be foreseen is an important concept. Another important concept is that even if the doctor was at fault the patient would have died anyhow. If that is the case then the doctor’s fault is not a proximate cause of the death. I call this defense the “shit happens” defense. That type of defense is present in most misdiagnosis cases. The defense says that even if the diagnosis had been made at that time the outcome would have been the same. The outcome being death or a poor result.
The point to be made in regards to causation is that this is a tricky point. Many medical malpractice cases are tried on that issue. In many cases there is no significant issue as to the doctor’s fault. Instead it becomes a question of whether or not that fault was a proximate cause of damage. That basic concept is overlooked by many.
Failure to Diagnose Presents Issues as To Causation
A doctor’s failure to diagnose may result in significant loss to a patient. However the patient must have a 50% or better chance of survival or recovery in order to prove causation based upon this theory. This is called the loss-of-chance doctrine. If the patient has less than an even chance of survival or recovery then the doctor may be made to pay for the reduction in that chance. This theory is premised upon a legal treatise known as the Restatement of Torts. It says that if the doctor’s conduct increases the risk of harm then the doctor may be liable for that increase.
However not all jurisdictions recognize the loss-of-chance doctrine. However it is a legal doctrine with substantial authority. It should be pursued in the appropriate case.
Malpractice Cases-Defenses
There are many defenses that may be raised in a medical malpractice claim:
Professional Judgement
- One of the more common defenses is simply that the doctor was making a judgment call. The fact he got it wrong does not mean he is at fault.
- Another is that even if the doctor was at fault the patient still would have died. This raises a causation question.
- The doctor fully disclosed the risk to the patient. However that does not mean that the doctor is immune.
Good Samaritan
- The Good Samaritan defense exist by statute. It protects providers from medical malpractice claims where they are rendering emergency care in a non-hospital context. This extends to ordinary fault and not to gross negligence. That is, if the level of fault of the doctor is ordinary then the defense applies. In contrast if the care was grossly negligent, then the defense does not apply.
Call, or contact us for a free consult.
Malpractice Cases-Caps
In Virginia there is a limit on how much a plaintiff may receive in a medical malpractice action. That limit or “cap” is 2.4 million dollars as of 2019 and increases $50,000 per year. The cap is an absolute limit. No more than the cap can be paid to a single patient. This is without regard to the number of persons sued.
The cap was passed years ago to address what was seen as the medical malpractice crisis. It was designed to keep down malpractice premiums for doctors. Medical malpractice lawyers in Virginia fought the cap. They fought it on the grounds that it deprived injured persons of the right to be fully paid for their injury.
The state high court has upheld the cap. Bases for challenge to the cap are that it deprives an injured plaintiff of his right to a jury trial. In other words the cap infringes on the jury’s role of setting damages. There is also the due process argument: the cap takes from the injured party the chance to be fully paid for injuries. This right is a property right. The taking of this right without full payment violates due process.
In the District of Columbia, there is no such limit. Doctors in D.C. are treated the same as any other people. As a result they can be made to pay as much as any others who commits a wrong. However within the District of Columbia notice must be given to health care providers before suit can be filed. The purpose of the notice is to allow for the parties to discuss settling the matter.
The Real Beneficiary of the Malpractice Cap
The logic behind the malpractice cap is to control insurance costs. However evidence of whether it in fact has that effect is in conflict.
Those who oppose the cap maintain the insurers reap all the profit. Also they argue the carriers do not pass these savings on in lower costs. Furthermore they point out that the cap is unfair in those cases where the plaintiff has expenses that exceed the cap. In addition the effect of the cap is that the insurers will never make an offer anywhere near the cap. That is, they know that by going to trial they are exposed to no more than the cap. So why should they offer anything near the cap? They might as well try the case.
Contact an Experienced Medical Malpractice Lawyer
If you or a loved one has been a victim of medical malpractice in Virginia or Washington DC contact Brien Roche today for an experienced, aggressive attorney.
