John L.A. Lyddane, New York Law Journal “The Cause-in-Fact Medical Malpractice Defense”

Much has been written in the general field of tort law about the cause-in-fact defense as contrasted with the legal concept of proximate cause, but the cause-in-fact defense is underemployed in medical malpractice cases tried in New York courts. The distinction between cause-in-fact, also referred to as “actual cause”, and proximate cause is frequently important enough to present this defense opportunity for the malpractice defendant where situationally appropriate. In most cases, the plaintiff retains the burden of proving through expert testimony that the defendant has departed from the accepted standard of care, and separately that the departure or departures were a proximate cause of the injury complained of, warranting an award of damages to the plaintiff. Reliance upon expert testimony to establish a prima facie case of causal connection is a necessary element of any malpractice claim.

The difference between cause-in-fact and proximate cause is well illustrated by the noteworthy decision of the West Virginia Supreme Court in Jones v. Virginia Railway, 115 W.Va. 663 (1934). In that case, there had been an accident at a railway crossing equipped with lights and a gong to warn those crossing the tracks of oncoming trains. There was also a local ordinance which required that the railway print the word “stop” conspicuously on the roadway, which had not been done prior to the accident. Although there was a failure to mark the pavement as directed by ordinance, the dismissal of the case as a matter of law was upheld. The court reasoned that with operational lights and a gong, there was no factual issue of proximate cause to submit to the jury. As a matter of law, the negligence of the defendant was not the actual cause of the accident. The court held that even if the ordinance had been complied with, the injuries would not have been prevented by markings on the street. Although the jury may well have reached the same conclusion, a valid legal defense is always preferable to reliance on a jury’s determination of factual issues.

New York courts have recognized the important distinction between actual cause as a legal issue and proximate cause as a factual question for many years. In Monahan v. Weichert, 82 A.D.2d 102 (4th Dep’t 1981), the Appellate Division focused on the difference between the effect of the patient’s disease process and the alleged negligence of the surgeon in a case where a patient had lost mobility following knee replacement surgery. The appellate court wrestled with the mixed factual and legal character of the causation issues on the facts of that case. However, the court acknowledged that the first inquiry on the issue of causation should be the trial court’s determination whether there was sufficient factual evidence to support the opinion of the plaintiff’s expert that the departure of the defendant surgeon was causal to the plaintiff’s claim of injuries.

The dismissal of the complaint is mandated where evidence on the issue of proximate cause is insufficient as a matter of law to create a question of fact for the jury. Where there is no evidentiary basis in the record to support the causation opinion, the opinion must be characterized as speculative and without foundation. Lipsius v. White, 91 A.D.2d 271, 279 (2d Dep’t 1983). The question becomes which fact patterns present the opportunity for the cause-in-fact defense.

Consider the case in which two gynecologists perform a laparoscopic hysterectomy on one of their patients. The doctors maintain entirely independent practices, but they frequently assist one another in complex cases. The laparoscopic instruments are used on both sides of the patient by both surgeons. The patient sustains a ureter injury which does not manifest itself until a day after the procedure, and the patient undergoes a second procedure to repair the ureter, followed by a long, complicated course to recovery. It becomes apparent that neither the gynecologists nor the other professionals who treated the patient are able to explain how the ureter was injured, but all agree that ureteral injury is an uncommon but recognized complication of a properly performed hysterectomy.

When the case proceeds to trial, the plaintiff’s expert has no other facts than those stated above. The plaintiff’s expert witness explains that this is a rare occurrence, explains the various ways in which a ureter could be negligently damaged at surgery and supports the plaintiff’s claim that the ureter should have been protected from injury. The witness states opinions that both surgeons departed from accepted standards of care in allowing the injury to occur, and that the departures were substantial factors in bringing about the injuries. However, based upon all of the evidence, the fact remains that injury to the ureter is a complication which can only be avoided entirely by forgoing an otherwise indicated surgical procedure. (As an aside, there is no informed consent claim, because the patient signed a consent form which specifically included injury to the bladder and ureters as listed complications).

The two attorneys representing the gynecologists argue in turn at the conclusion of the proof that there is insufficient evidence to submit the case to the jury, particularly on the issue of causation. Aside from the speculative testimony on the departures during surgery, there are multiple scenarios on causation. The injury to the ureter may have been caused without negligence, or by negligence on the part of one or both surgeons. In most instances, the trial court would charge the jury that speculation is no substitute for proof, and then allow the jury to decide the case. In some cases, the jury would find in favor of the plaintiff, but what then?

Sending the case to the jury is an error prejudicial to both defendants, and the award of damages by the jury tends to invest the plaintiff with a property right shifting the burden of proof to the defendant to reverse the new status quo. This is not a res ipsa loquitur case, because the event could occur in the absence of negligence. If the record has been carefully made by defense counsel, it will be easier to avoid having the court instruct the jury that it may not speculate in reaching a verdict on questions which can only be answered through speculation.

The court’s obligation to rule as a matter of law on the cause-in-fact defense is perhaps more evident in the case involving a patient with a long-standing gastrointestinal condition, requiring ongoing surveillance and potentially requiring definitive surgical treatment. The surveillance is undertaken by the patient’s gastroenterologist, who performs colonoscopies with biopsies on a regular basis for a period of 15 years. The patient is seen concurrently but less frequently by a colorectal surgeon who is in ongoing discussion with the gastroenterologist and the patient regarding treatment options. Both doctors attempt to help the patient live a normal life, with the understanding that ultimately the surgeon may need to perform life-changing surgery if the condition turns malignant. However, before definitive treatment is considered, the patient is found to have an aggressive form of bowel cancer which has metastasized, reducing the prognosis for survival.

The gastroenterologist is sued for a delay in diagnosis, based upon studies that are claimed to have shown pathological changes which required aggressive surgery at an earlier point. The case proceeds to trial without a claim against the surgeon. The plaintiff produces a surgical expert who opines that the biopsy-proven changes in the patient’s colon required earlier surgery. The expert maintains that not referring the patient to his surgeon at an earlier point was a departure from the standard of care, and that the departure was the proximate cause of the spread of the disease and the reduced chances of survival.

On the defense, the patient’s colorectal surgeon is called to testify and is asked whether he agrees with the opinion of the plaintiff’s expert witness that the changes in the biopsy results required earlier surgery. The surgeon testifies that the most recent biopsy results did not justify the extensive surgery and he would not have performed the surgery if the referral had been made, nor would he have investigated further before the malignancy manifested itself. Ordinarily the difference of opinion between two experts would present a factual question to be resolved by the jury, but this fact pattern would require the court to dismiss the claim as a matter of law. Whether the jury credited the testimony of the non-party surgeon or the plaintiff’s expert on whether surgery was indicated, the gastroenterologist has a cause-in-fact defense that mandates dismissal. The fact that the surgeon would not have changed the approach to the patient deprives the opinion of the plaintiff’s expert of a basis as a matter of law.

Every defendant’s case is entitled to evaluation and a defense on its own set of circumstances. It does not take imagination to derive other scenarios in which the facts of the case cannot be overcome by the opinion of the opposing expert witness, and require dismissal as a matter of law. The challenge to defense counsel is to identify those opportunities in the unique facts of every appropriate case.

This article is also on Law.com: The Cause-in-Fact Medical Malpractice Defense

Much has been written in the general field of tort law about the cause-in-fact defense as contrasted with the legal concept of proximate cause, but the cause-in-fact defense is underemployed in medical malpractice cases tried in New York courts. The distinction between cause-in-fact, also referred to as “actual cause”, and proximate cause is frequently important enough to present this defense opportunity for the malpractice defendant where situationally appropriate. In most cases, the plaintiff retains the burden of proving through expert testimony that the defendant has departed from the accepted standard of care, and separately that the departure or departures were a proximate cause of the injury complained of, warranting an award of damages to the plaintiff. Reliance upon expert testimony to establish a prima facie case of causal connection is a necessary element of any malpractice claim.

The difference between cause-in-fact and proximate cause is well illustrated by the noteworthy decision of the West Virginia Supreme Court in Jones v. Virginia Railway, 115 W.Va. 663 (1934). In that case, there had been an accident at a railway crossing equipped with lights and a gong to warn those crossing the tracks of oncoming trains. There was also a local ordinance which required that the railway print the word “stop” conspicuously on the roadway, which had not been done prior to the accident. Although there was a failure to mark the pavement as directed by ordinance, the dismissal of the case as a matter of law was upheld. The court reasoned that with operational lights and a gong, there was no factual issue of proximate cause to submit to the jury. As a matter of law, the negligence of the defendant was not the actual cause of the accident. The court held that even if the ordinance had been complied with, the injuries would not have been prevented by markings on the street. Although the jury may well have reached the same conclusion, a valid legal defense is always preferable to reliance on a jury’s determination of factual issues.

New York courts have recognized the important distinction between actual cause as a legal issue and proximate cause as a factual question for many years. In Monahan v. Weichert, 82 A.D.2d 102 (4th Dep’t 1981), the Appellate Division focused on the difference between the effect of the patient’s disease process and the alleged negligence of the surgeon in a case where a patient had lost mobility following knee replacement surgery. The appellate court wrestled with the mixed factual and legal character of the causation issues on the facts of that case. However, the court acknowledged that the first inquiry on the issue of causation should be the trial court’s determination whether there was sufficient factual evidence to support the opinion of the plaintiff’s expert that the departure of the defendant surgeon was causal to the plaintiff’s claim of injuries.

The dismissal of the complaint is mandated where evidence on the issue of proximate cause is insufficient as a matter of law to create a question of fact for the jury. Where there is no evidentiary basis in the record to support the causation opinion, the opinion must be characterized as speculative and without foundation. Lipsius v. White, 91 A.D.2d 271, 279 (2d Dep’t 1983). The question becomes which fact patterns present the opportunity for the cause-in-fact defense.

Consider the case in which two gynecologists perform a laparoscopic hysterectomy on one of their patients. The doctors maintain entirely independent practices, but they frequently assist one another in complex cases. The laparoscopic instruments are used on both sides of the patient by both surgeons. The patient sustains a ureter injury which does not manifest itself until a day after the procedure, and the patient undergoes a second procedure to repair the ureter, followed by a long, complicated course to recovery. It becomes apparent that neither the gynecologists nor the other professionals who treated the patient are able to explain how the ureter was injured, but all agree that ureteral injury is an uncommon but recognized complication of a properly performed hysterectomy.

When the case proceeds to trial, the plaintiff’s expert has no other facts than those stated above. The plaintiff’s expert witness explains that this is a rare occurrence, explains the various ways in which a ureter could be negligently damaged at surgery and supports the plaintiff’s claim that the ureter should have been protected from injury. The witness states opinions that both surgeons departed from accepted standards of care in allowing the injury to occur, and that the departures were substantial factors in bringing about the injuries. However, based upon all of the evidence, the fact remains that injury to the ureter is a complication which can only be avoided entirely by forgoing an otherwise indicated surgical procedure. (As an aside, there is no informed consent claim, because the patient signed a consent form which specifically included injury to the bladder and ureters as listed complications).

The two attorneys representing the gynecologists argue in turn at the conclusion of the proof that there is insufficient evidence to submit the case to the jury, particularly on the issue of causation. Aside from the speculative testimony on the departures during surgery, there are multiple scenarios on causation. The injury to the ureter may have been caused without negligence, or by negligence on the part of one or both surgeons. In most instances, the trial court would charge the jury that speculation is no substitute for proof, and then allow the jury to decide the case. In some cases, the jury would find in favor of the plaintiff, but what then?

Sending the case to the jury is an error prejudicial to both defendants, and the award of damages by the jury tends to invest the plaintiff with a property right shifting the burden of proof to the defendant to reverse the new status quo. This is not a res ipsa loquitur case, because the event could occur in the absence of negligence. If the record has been carefully made by defense counsel, it will be easier to avoid having the court instruct the jury that it may not speculate in reaching a verdict on questions which can only be answered through speculation.

The court’s obligation to rule as a matter of law on the cause-in-fact defense is perhaps more evident in the case involving a patient with a long-standing gastrointestinal condition, requiring ongoing surveillance and potentially requiring definitive surgical treatment. The surveillance is undertaken by the patient’s gastroenterologist, who performs colonoscopies with biopsies on a regular basis for a period of 15 years. The patient is seen concurrently but less frequently by a colorectal surgeon who is in ongoing discussion with the gastroenterologist and the patient regarding treatment options. Both doctors attempt to help the patient live a normal life, with the understanding that ultimately the surgeon may need to perform life-changing surgery if the condition turns malignant. However, before definitive treatment is considered, the patient is found to have an aggressive form of bowel cancer which has metastasized, reducing the prognosis for survival.

The gastroenterologist is sued for a delay in diagnosis, based upon studies that are claimed to have shown pathological changes which required aggressive surgery at an earlier point. The case proceeds to trial without a claim against the surgeon. The plaintiff produces a surgical expert who opines that the biopsy-proven changes in the patient’s colon required earlier surgery. The expert maintains that not referring the patient to his surgeon at an earlier point was a departure from the standard of care, and that the departure was the proximate cause of the spread of the disease and the reduced chances of survival.

On the defense, the patient’s colorectal surgeon is called to testify and is asked whether he agrees with the opinion of the plaintiff’s expert witness that the changes in the biopsy results required earlier surgery. The surgeon testifies that the most recent biopsy results did not justify the extensive surgery and he would not have performed the surgery if the referral had been made, nor would he have investigated further before the malignancy manifested itself. Ordinarily the difference of opinion between two experts would present a factual question to be resolved by the jury, but this fact pattern would require the court to dismiss the claim as a matter of law. Whether the jury credited the testimony of the non-party surgeon or the plaintiff’s expert on whether surgery was indicated, the gastroenterologist has a cause-in-fact defense that mandates dismissal. The fact that the surgeon would not have changed the approach to the patient deprives the opinion of the plaintiff’s expert of a basis as a matter of law.

Every defendant’s case is entitled to evaluation and a defense on its own set of circumstances. It does not take imagination to derive other scenarios in which the facts of the case cannot be overcome by the opinion of the opposing expert witness, and require dismissal as a matter of law. The challenge to defense counsel is to identify those opportunities in the unique facts of every appropriate case.

This article is also on Law.com: The Cause-in-Fact Medical Malpractice Defense