Causation is the third element that a plaintiff must prove in a medical malpractice case.  We have discussed duty, breach of duty, causation and damages.  Causation actually in some ways is the most contentious.  Duty can be readily identified and both sides pretty much have a good idea when they sit down and evaluate a case whether there may or there may not have been a breach of duty. Causation is another matter.

There are countless many medical conditions and problems that can contribute to one another.  One of these conditions could become more or less important than another.  It is vital to discover what the real cause of the patient’s condition was.  This is something that is difficult to ascertain, but because it’s hard to ascertain is a subject of a lot of fighting and can lead to a trial.

A physician is not responsible to pay for a damage that the physician did not cause.  An example might be a surgeon who performs a surgery that is successful, and the patient is discharged.  After discharge the patient may get an infection.  The infection is not the fault of the physician and something bad may happen as a result of the infection. In that case, the Physician would be justified in saying they were not the cause.  The infection caused the problem which happened after the surgeon completed their job.

This is a real life example that we have tried.  This was an instance of a brain damaged infant case. We litigated that case and it went to trial. At the trial we succeeded in proving that the physician had departed from the accepted standards of care and not responded to the condition of fetal distress.  The brain damaged infant that had cerebral palsy should be compensated. The defendant was able to show at the trial that the very same constellation of injuries that the infant plaintiff had were also possibly caused by a genetic syndrome.  The case had a twist when the genetic testing showed that there were genetic defects for that child that could have led to his CP.  The question was, what caused the child’s injury? Was it the genetic defect or was it the clear departures that showed a lack of oxygen to that child’s brain?

That case resolved with both sides showing some prudence.  Neither side wanted to take the chance of all or nothing, and a multi-million dollar settlement was attained in that case.  This case shows that if you leave it to a jury to decide causation, it can be a very unpredictable. What we do prior to initiating a case is anticipate all the different causation defenses that might exist and talk to our client about it so they are fully aware of what may be happening.

If you think you have a medical malpractice case, and you’re worried about the causation aspect of it, please give me a call and let me see if I can help you.

This blog was provided by Marc Chase, an experienced Brooklyn medical malpractice lawyer.

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