Factual and proximate cause

Question: Mrs. P sustained multiple fractures after a drunk driver struck her car. The orthopedic surgeon accidentally nicked her femoral artery during surgery, which resulted in profuse hemorrhage requiring six units of packed red blood cells. Although she survived, Mrs. P was left with irreversible renal failure, and she now requires lifelong dialysis. Which of the following is correct?

A. The drunk driver’s negligence may be both a factual and proximate cause of all of Mrs. P’s injuries.

B. The surgeon’s action may be deemed a factual, a concurring, or a superseding cause.

C. The surgeon will be successfully sued for malpractice.

D. Only A and B are correct.

E. All are correct.

Answer: D. The surgeon may be successfully sued for malpractice if the nicking of the artery is shown to be a negligent act. This is by no means a foregone conclusion, as a bad outcome is not necessarily indicative of negligence. The measure of legal negligence is what is to be ordinarily expected of a surgeon under similar situations.

For example, expert testimony may establish exculpatory circumstances such as an obscured surgical field, anomalous anatomy, emergency conditions, etc., that would free the surgeon from liability.

Causation issues have long plagued courts and scholars, earning epithets like "a thicket of complexities" and "a simplicity that is deceptive." Causation inquires into both factual and proximate cause. Factual cause deals with whether there is a physical and sequential cause-effect relationship between a defendant’s negligence and a plaintiff’s injuries. It uses the "but-for" test, which stipulates that the defendant’s conduct is a factual cause of a plaintiff’s injuries if the plaintiff’s harm would not have occurred but for defendant’s conduct, i.e., in the absence of the defendant’s tortious conduct.

A recent case is illustrative (BNM v. National University of Singapore, [2014] SGHC 05). An obese, middle-aged man drowned while swimming in the university pool. Lifeguards were on duty, but they were neither aware of where the emergency equipment was kept nor adequately trained in cardiopulmonary resuscitation. Efforts to revive the swimmer failed.

At autopsy, the victim was found to have cardiomegaly and advanced coronary artery disease, with old foci of myocardial scarring. The coroner testified that the victim probably suffered a major cardiac event, such as an arrhythmia, prior to drowning.

On the issue of causation, the court held that because of his severe underlying heart disease, the deceased was not likely to have survived, even if the lifeguards had acted more promptly, i.e., the negligent lifeguards did not factually cause the victim’s death.

A more important inquiry into causal connectivity is captured in the term "proximate cause," which is meant to prevent indeterminate liability. It is sometimes referred to as legal cause.

Unfortunately, there is no bright line to define what constitutes a sufficient causal nexus, and courts are therefore occasionally forced to base their decision on their sense of practical policy and justice. In some cases, an intervening event results in causing, or aggravating, harm suffered by the victim, but the original defendant may be freed of liability if the intervening event constitutes a superseding cause, i.e. unforeseeable event with unforeseeable results.

The opposite is a concurring cause. For example, rescuers may sometimes act negligently following a tortious event leading to aggravated injuries. If such conduct and damages were deemed foreseeable, that would constitute a concurring cause, and the initial wrongdoer then becomes liable for both the original and any aggravated injuries.

A variant of proximate cause is when the harm suffered is a natural expectation of the underlying condition, and the wrongdoer’s negligence simply deprived the victim of some chance of reducing that risk. This is known as the "loss of a chance" doctrine, which has been variously considered a part of causation analysis, a separate tort, or a means to apportion damages.

It asserts that the damage or loss that will materialize or had already materialized, could have been prevented or improved upon – had the victim not been deprived of an opportunity. Loss of a chance is simply another way of saying that the defendant’s conduct has increased the risk of harm to the plaintiff.

The doctrine is well established in contract law, especially where only economic losses are at issue, the key requirement there being that the lost opportunity be real or substantial, and not speculative. The seminal case, Chaplin v. Hicks ([1911] 2 KB 786), dealt with a late notification in a competition, which caused a plaintiff to lose her chance as a finalist to win a prize. The court ruled that the damage was not too remote, and the plaintiff did not have to prove that she would have won the competition.

In clinical negligence, allegations of loss of a chance often arise from an omission to treat or a failure to diagnose, which in turn may deprive the patient of an opportunity of a better outcome. In some U.S. and most Commonwealth jurisdictions, its successful application requires that the underlying condition prior to an individual’s negligence be associated with a better than even chance of cure to begin with.

The controversy arises over what level of risk reduction or lost opportunity is necessary to constitute proximate causation. How large the chance of an adverse outcome and how much of a reduction in that chance are required as a matter of law? Some courts assert that the lost opportunity is relevant only if the plaintiff’s prognosis for survival is better than 50% to begin with, whereas others reject this numerical imperative, especially in cases alleging a delayed diagnosis of cancer.

Proximate cause is the law’s intended mechanism to limit indeterminate liability. Thus, whether a defendant’s negligent conduct constitutes proximate cause is often dispositive in personal injury litigation. However, the term is frequently misunderstood, and has caused much confusion because it has sometimes been used interchangeably with legal cause, or used to include factual cause. And, of course, there can be more than one proximate cause for any given injury.

Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, suggesting instead that the jury be simply directed to determine whether the defendant’s conduct was a contributory factor in the plaintiff’s injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006) and his Halsbury treatise, "Medical Negligence and Professional Misconduct" (2012). For additional information, readers may contact the author at [email protected].

Question: Mrs. P sustained multiple fractures after a drunk driver struck her car. The orthopedic surgeon accidentally nicked her femoral artery during surgery, which resulted in profuse hemorrhage requiring six units of packed red blood cells. Although she survived, Mrs. P was left with irreversible renal failure, and she now requires lifelong dialysis. Which of the following is correct?

A. The drunk driver’s negligence may be both a factual and proximate cause of all of Mrs. P’s injuries.

B. The surgeon’s action may be deemed a factual, a concurring, or a superseding cause.

C. The surgeon will be successfully sued for malpractice.

D. Only A and B are correct.

E. All are correct.

Answer: D. The surgeon may be successfully sued for malpractice if the nicking of the artery is shown to be a negligent act. This is by no means a foregone conclusion, as a bad outcome is not necessarily indicative of negligence. The measure of legal negligence is what is to be ordinarily expected of a surgeon under similar situations.

For example, expert testimony may establish exculpatory circumstances such as an obscured surgical field, anomalous anatomy, emergency conditions, etc., that would free the surgeon from liability.

Causation issues have long plagued courts and scholars, earning epithets like "a thicket of complexities" and "a simplicity that is deceptive." Causation inquires into both factual and proximate cause. Factual cause deals with whether there is a physical and sequential cause-effect relationship between a defendant’s negligence and a plaintiff’s injuries. It uses the "but-for" test, which stipulates that the defendant’s conduct is a factual cause of a plaintiff’s injuries if the plaintiff’s harm would not have occurred but for defendant’s conduct, i.e., in the absence of the defendant’s tortious conduct.

A recent case is illustrative (BNM v. National University of Singapore, [2014] SGHC 05). An obese, middle-aged man drowned while swimming in the university pool. Lifeguards were on duty, but they were neither aware of where the emergency equipment was kept nor adequately trained in cardiopulmonary resuscitation. Efforts to revive the swimmer failed.

At autopsy, the victim was found to have cardiomegaly and advanced coronary artery disease, with old foci of myocardial scarring. The coroner testified that the victim probably suffered a major cardiac event, such as an arrhythmia, prior to drowning.

On the issue of causation, the court held that because of his severe underlying heart disease, the deceased was not likely to have survived, even if the lifeguards had acted more promptly, i.e., the negligent lifeguards did not factually cause the victim’s death.

A more important inquiry into causal connectivity is captured in the term "proximate cause," which is meant to prevent indeterminate liability. It is sometimes referred to as legal cause.

Unfortunately, there is no bright line to define what constitutes a sufficient causal nexus, and courts are therefore occasionally forced to base their decision on their sense of practical policy and justice. In some cases, an intervening event results in causing, or aggravating, harm suffered by the victim, but the original defendant may be freed of liability if the intervening event constitutes a superseding cause, i.e. unforeseeable event with unforeseeable results.

The opposite is a concurring cause. For example, rescuers may sometimes act negligently following a tortious event leading to aggravated injuries. If such conduct and damages were deemed foreseeable, that would constitute a concurring cause, and the initial wrongdoer then becomes liable for both the original and any aggravated injuries.

A variant of proximate cause is when the harm suffered is a natural expectation of the underlying condition, and the wrongdoer’s negligence simply deprived the victim of some chance of reducing that risk. This is known as the "loss of a chance" doctrine, which has been variously considered a part of causation analysis, a separate tort, or a means to apportion damages.

It asserts that the damage or loss that will materialize or had already materialized, could have been prevented or improved upon – had the victim not been deprived of an opportunity. Loss of a chance is simply another way of saying that the defendant’s conduct has increased the risk of harm to the plaintiff.

The doctrine is well established in contract law, especially where only economic losses are at issue, the key requirement there being that the lost opportunity be real or substantial, and not speculative. The seminal case, Chaplin v. Hicks ([1911] 2 KB 786), dealt with a late notification in a competition, which caused a plaintiff to lose her chance as a finalist to win a prize. The court ruled that the damage was not too remote, and the plaintiff did not have to prove that she would have won the competition.

In clinical negligence, allegations of loss of a chance often arise from an omission to treat or a failure to diagnose, which in turn may deprive the patient of an opportunity of a better outcome. In some U.S. and most Commonwealth jurisdictions, its successful application requires that the underlying condition prior to an individual’s negligence be associated with a better than even chance of cure to begin with.

The controversy arises over what level of risk reduction or lost opportunity is necessary to constitute proximate causation. How large the chance of an adverse outcome and how much of a reduction in that chance are required as a matter of law? Some courts assert that the lost opportunity is relevant only if the plaintiff’s prognosis for survival is better than 50% to begin with, whereas others reject this numerical imperative, especially in cases alleging a delayed diagnosis of cancer.

Proximate cause is the law’s intended mechanism to limit indeterminate liability. Thus, whether a defendant’s negligent conduct constitutes proximate cause is often dispositive in personal injury litigation. However, the term is frequently misunderstood, and has caused much confusion because it has sometimes been used interchangeably with legal cause, or used to include factual cause. And, of course, there can be more than one proximate cause for any given injury.

Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, suggesting instead that the jury be simply directed to determine whether the defendant’s conduct was a contributory factor in the plaintiff’s injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006) and his Halsbury treatise, "Medical Negligence and Professional Misconduct" (2012). For additional information, readers may contact the author at [email protected].

Question: Mrs. P sustained multiple fractures after a drunk driver struck her car. The orthopedic surgeon accidentally nicked her femoral artery during surgery, which resulted in profuse hemorrhage requiring six units of packed red blood cells. Although she survived, Mrs. P was left with irreversible renal failure, and she now requires lifelong dialysis. Which of the following is correct?

A. The drunk driver’s negligence may be both a factual and proximate cause of all of Mrs. P’s injuries.

B. The surgeon’s action may be deemed a factual, a concurring, or a superseding cause.

C. The surgeon will be successfully sued for malpractice.

D. Only A and B are correct.

E. All are correct.

Answer: D. The surgeon may be successfully sued for malpractice if the nicking of the artery is shown to be a negligent act. This is by no means a foregone conclusion, as a bad outcome is not necessarily indicative of negligence. The measure of legal negligence is what is to be ordinarily expected of a surgeon under similar situations.

For example, expert testimony may establish exculpatory circumstances such as an obscured surgical field, anomalous anatomy, emergency conditions, etc., that would free the surgeon from liability.

Causation issues have long plagued courts and scholars, earning epithets like "a thicket of complexities" and "a simplicity that is deceptive." Causation inquires into both factual and proximate cause. Factual cause deals with whether there is a physical and sequential cause-effect relationship between a defendant’s negligence and a plaintiff’s injuries. It uses the "but-for" test, which stipulates that the defendant’s conduct is a factual cause of a plaintiff’s injuries if the plaintiff’s harm would not have occurred but for defendant’s conduct, i.e., in the absence of the defendant’s tortious conduct.

A recent case is illustrative (BNM v. National University of Singapore, [2014] SGHC 05). An obese, middle-aged man drowned while swimming in the university pool. Lifeguards were on duty, but they were neither aware of where the emergency equipment was kept nor adequately trained in cardiopulmonary resuscitation. Efforts to revive the swimmer failed.

At autopsy, the victim was found to have cardiomegaly and advanced coronary artery disease, with old foci of myocardial scarring. The coroner testified that the victim probably suffered a major cardiac event, such as an arrhythmia, prior to drowning.

On the issue of causation, the court held that because of his severe underlying heart disease, the deceased was not likely to have survived, even if the lifeguards had acted more promptly, i.e., the negligent lifeguards did not factually cause the victim’s death.

A more important inquiry into causal connectivity is captured in the term "proximate cause," which is meant to prevent indeterminate liability. It is sometimes referred to as legal cause.

Unfortunately, there is no bright line to define what constitutes a sufficient causal nexus, and courts are therefore occasionally forced to base their decision on their sense of practical policy and justice. In some cases, an intervening event results in causing, or aggravating, harm suffered by the victim, but the original defendant may be freed of liability if the intervening event constitutes a superseding cause, i.e. unforeseeable event with unforeseeable results.

The opposite is a concurring cause. For example, rescuers may sometimes act negligently following a tortious event leading to aggravated injuries. If such conduct and damages were deemed foreseeable, that would constitute a concurring cause, and the initial wrongdoer then becomes liable for both the original and any aggravated injuries.

A variant of proximate cause is when the harm suffered is a natural expectation of the underlying condition, and the wrongdoer’s negligence simply deprived the victim of some chance of reducing that risk. This is known as the "loss of a chance" doctrine, which has been variously considered a part of causation analysis, a separate tort, or a means to apportion damages.

It asserts that the damage or loss that will materialize or had already materialized, could have been prevented or improved upon – had the victim not been deprived of an opportunity. Loss of a chance is simply another way of saying that the defendant’s conduct has increased the risk of harm to the plaintiff.

The doctrine is well established in contract law, especially where only economic losses are at issue, the key requirement there being that the lost opportunity be real or substantial, and not speculative. The seminal case, Chaplin v. Hicks ([1911] 2 KB 786), dealt with a late notification in a competition, which caused a plaintiff to lose her chance as a finalist to win a prize. The court ruled that the damage was not too remote, and the plaintiff did not have to prove that she would have won the competition.

In clinical negligence, allegations of loss of a chance often arise from an omission to treat or a failure to diagnose, which in turn may deprive the patient of an opportunity of a better outcome. In some U.S. and most Commonwealth jurisdictions, its successful application requires that the underlying condition prior to an individual’s negligence be associated with a better than even chance of cure to begin with.

The controversy arises over what level of risk reduction or lost opportunity is necessary to constitute proximate causation. How large the chance of an adverse outcome and how much of a reduction in that chance are required as a matter of law? Some courts assert that the lost opportunity is relevant only if the plaintiff’s prognosis for survival is better than 50% to begin with, whereas others reject this numerical imperative, especially in cases alleging a delayed diagnosis of cancer.

Proximate cause is the law’s intended mechanism to limit indeterminate liability. Thus, whether a defendant’s negligent conduct constitutes proximate cause is often dispositive in personal injury litigation. However, the term is frequently misunderstood, and has caused much confusion because it has sometimes been used interchangeably with legal cause, or used to include factual cause. And, of course, there can be more than one proximate cause for any given injury.

Reflecting this complexity, the California Supreme Court now disallows confusing jury instructions regarding proximate cause, suggesting instead that the jury be simply directed to determine whether the defendant’s conduct was a contributory factor in the plaintiff’s injury (Mitchell v. Gonzales, 819 P.2d 872 [Cal. 1991]).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006) and his Halsbury treatise, "Medical Negligence and Professional Misconduct" (2012). For additional information, readers may contact the author at [email protected].