After the Breach: Causation in Medical Malpractice Cases
Written by Jan Marin, Senior Associate & Lawyer Causation can be a difficult legal concept to understand. This blog should give readers or potential clients a good introduction and summary of some important points about how courts determine causation; but since causation is so fact-specific, you should always consult a lawyer if you have questions about how it might apply your own case. In medical malpractice there are two important tests that need to be met: 1) there must be a breach of the standard of care, which I discussed in a prior blog post and 2) the breach must cause the damages. This sounds straight forward – but it’s not. For example, what if a doctor fails to order a test which could have detected cancer at an early stage? It may be possible that if the cancer was detected earlier there could be a better outcome; but, on the other hand, it is also possible that even with early detection the cancer could progress. How do we deal with this? Does the doctor’s failure to order the test ‘cause’ the damage? How can we know if the outcome would have been better? To find out, read on: Medical Experts As I have discussed in prior blog posts, medical malpractice cases rely heavily on medical experts. In the above example, after speaking to my potential client and receiving the relevant information and medical records, my first call would be to a specialist. I typically run the scenario by them to understand what I’m dealing with. Usually, these cases cannot proceed without a supportive expert opinion and I need the specialist to tell me whether my client’s outcome could have been better if the medical professional had not made a mistake. Multiple Parties, Multiple Errors, Multiple Causes Human beings are complex organisms. Many factors contribute to our general health and well-being. Similarly, when we sustain an injury or experience ill-health, there could be more than one possible explanation for what caused the problem or more than one healthcare provider who made a mistake. For the lawsuit to be successful, you must sue the right party. The lawyer and medical expert reviewing the case will need to consider all parties involved to determine the relevant parties to the lawsuit. It is also possible for the medical provider(s) to suggest the injury was caused by something else. For example, in a chiropractic negligence case, the chiropractor could argue that the injury is related to a pre-existing issue and not the treatment. Pre-existing poor health or an underlying health issue is a common argument used by defendants. The Legal Tests for Causation There are a few legal tests related to the issue of causation. Briefly, the balance of probabilities means it is more likely than not that a defendant’s breach of the standard of care caused your injury. There is also the ‘but for’ test. Which means that ‘but for’ the negligence of a medical provider, the injury would not have occurred. This area of the law is complex and should be reviewed by your lawyer. I always take time to explain these concepts to my clients as they apply to each case as they are fact specific. It All Depends on the Facts When there are so many factors at play, determining the facts of each individual case is paramount. Therefore, when you consult a medical malpractice lawyer to help decide if you have an actionable case, it’s important to provide them with as many details as you can, so that they may conduct a thorough initial investigation. If these investigations find a breach in the standard of care and that the breach probably caused your injury, you’ll be better able to make an informed decision about whether you want to proceed with a lawsuit. To learn more or discuss your potential case please feel free to contact me at firstname.lastname@example.org, or give me a call at 416.408.4252, Ext.246.
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