CAUSATION OF INJURY
Just as important as establishing the doctor’s negligence, a plaintiff must also prove that this negligence caused injury. In short, it must be proven to a reasonable degree of medical certainty that the doctor’s conduct was a substantial factor in bringing about the harm the patient suffered.
Proving causation in a malpractice case is difficult. There are complications that can arise from almost every type of medical care. Complications often happen, not because of negligence, but simply because there are inherent risks connected to most medical procedures or treatment.
In most medical malpractice cases, direct causation cannot be proven. For example, if a physician negligently fails to diagnose cancer at an early stage, and it is discovered later at an advanced stage, certainly one cannot say that the physician’s negligence caused the cancer. Yet, the patient may have missed his or her window of opportunity to treat the disease. By failing to treat the disease early, the patient has lost a chance of a better outcome or cure.
In most, if not all states, the law allows the plaintiff to proceed in this type of case under a relaxed standard known generally as increased risk of harm. This means that even though one cannot prove that the doctor’s conduct caused the harm, a plaintiff can satisfy his or her burden of proving causation by establishing that the doctor’s negligent conduct increased the risk that the harm would occur or worsen.
Damages
The third proposition that must be proven is damages, that is, the actual harm caused by the malpractice. The objective of any case is to compensate the victim for the actual harm suffered. No matter how egregious the doctor’s conduct, it is not a factor in valuing the patient’s injuries.
The law generally categorizes the types of harm that may be compensated. They include economic harm, such as medical bills and lost wages, and non-economic harm, such as physical or mental pain and suffering, loss of the enjoyment of life’s pleasures, embarrassment, and humiliation. (See Chapter 7 for a discussion of damages.)
If it turns out that any of the three elements (negligence, causation, or damages) cannot be proven to the degree legally required, the case will fail. A qualified malpractice attorney can usually determine within a short period of time if the case is winnable. If it is not, at least you should come to feel that your concerns have been taken seriously and that there simply is no feasible legal claim. This is a far more satisfactory situation than simply being left to wonder if a member of the medical community has wronged you or a family member. If your malpractice lawyer carefully explains to you why the claim cannot be successfully pursued and answers all your questions, you should be able to reach a measure of closure-not possible without having engaged the malpractice attorney.
