The preparation of the defense of a medical malpractice claim necessarily involves expert review, but there is more here than meets the eye. The focus at trial will be whether there was a violation of the prevailing standard of care by the defendant and whether that caused injury to the patient. All too often the primary focus is placed upon the defense of the liability issues while the defense of proximate cause receives less attention. The defendant surgeon or gynecologist may be of assistance to defense counsel on standard of care and consent issues, but causation defenses may involve the interpretation of radiology and pathology studies or other subjects which are not within the knowledge of the defendant or the expert witnesses in the defendant’s specialty. Without full exploration of the causation issues, the defense is ill prepared for trial.
Expert testimony is required to establish the standard of care, a departure from that standard, and that the departure was a proximate cause of the damages claimed. Koehler v. Schwartz, 48 N.Y.2d 807 (1979). Finding that the patient’s disease process had reached an incurable stage before the defendant’s treatment, and that there was no expert evidence to support the claim that malpractice caused injury, the Appellate Division in Lubbe v. Hilgert, 135 AD 227 (1st Dept. 1909) vacated a verdict in favor of the plaintiff and dismissed his complaint. Likewise, in Robbins v. Nathan, 189 A.D. 827 (2d Dept. 1919), the court found that causation cannot be decided upon the testimony of lay witnesses or by jurors based on their own experience, vacating the verdict in favor of the plaintiff and dismissing the complaint. In preparing a case for trial, ignoring the effects of such a solidly established point of law would be a grave disservice to the defendant.
While much of medical causation may appear to be intuitive, the courts have long recognized that determining the rights of litigants in the medical malpractice setting involves distinguishing between the consequences of negligent care and the course of underlying diseases. Monahan v. Weichert, 82 A.D.2d 102 (4th Dept. 1981). In a case where the defendant failed to test aspirated fluid for cancer cells and did not follow up with the patient after she had missed several appointments, the trial court in Lyons v. McCauley, 252 A.D.2d 516 (2d Dept. 1998), dismissed the case at the close of evidence and this was sustained on appeal. The Appellate Division cited the absence of expert testimony to the effect that the departures from accepted standards had caused a delay in diagnosis or had caused injury to the unfortunate breast cancer patient.
Where the patient in Gayle v. Neyman, 91 A.D.2d 75 (1st Dept. 1983) complained of gynecologic issues to her internist and he did not examine or refer her, she was later required to undergo a hysterectomy due to advanced disease. However, based upon the causation testimony of defense experts, the trial court vacated the verdict in her favor and the Appellate Division affirmed. Difficulty with the evidence of causation prompted the Court of Appeals in Benson v. Dean, 232 N.Y. 52 (1921), to order a new trial where the issue was whether the patient should have been referred to a more experienced surgeon rather than having surgery with the defendant. In yet another case, the patient was advised to cease taking aspirin several days before a colonoscopy, and after doing so he suffered a myocardial infarction before the procedure could be performed. In Colletti v. Deutsch, 150 A.D.3d 1196 (2d Dept. 2017). The Appellate Division affirmed summary judgment in favor of the defendant, again based upon the analysis of the expert testimony on the issue of causation. Where the defendant hospital’s radiology department corrected the report of a study without providing the correction to the ordering physician, a verdict in Lopes v. Lenox Hill Hospital, 172 A.D.3d 699 (2d Dept. 2019) was set aside and subsequently affirmed. A $10 million verdict in favor of the plaintiff, an infant allegedly injured as a result of the failure to perform a follow-up sonogram in pregnancy, was set aside with Appellate Division affirmance of the dismissal of the complaint in Pace v. Jakus, 291 A.D.2d 436 (2d Dept. 2002). In each of these cases, the ultimate success of the defense was based upon the analysis of the experts’ demonstration of the absence of the element of causation.
It has long been the law of the state of New York that when there are two or more possible causes of an injury, one or more of which is not the fault of the defendant, the plaintiff’s case fails as a matter of law. Taylor v. City of Yonkers, 105 N.Y. 202 (1887). Thus, in Yaggle v. Allen, 24 A.D. 594 (3d Dept. 1898), the Appellate Division vacated a trial verdict, holding that the plaintiff had not shown by evidence that the patient’s death was wholly or partly the result of a cause which would render the defendant liable.
In a case of difficult facts producing bad law, a divided Appellate Division in Kallenberg v. Beth Israel Hospital, 45 A.D.2d 177 (1st Dept. 1974) sustained a jury’s award of damages in a wrongful death case where at best the patient had a 40% chance of survival. The plaintiff clearly failed to establish that the acts of the defendants were the proximate cause of the patient’s death, and the jury decided one liability issue among five in favor of the plaintiff. However, the Court sustained the liability verdict in favor of the plaintiff with the full award of damages, as if the patient’s ability to survive but for the malpractice was unquestioned. Fortunately, that holding has limited application in most cases because the requirement that the plaintiff prove proximate cause by competent proof is still the law. Thus, in Kimball v. Scors, 59 A.D.2d 984 (3d Dept. 1977), the Appellate Division disagreed with plaintiff that the jury should have been charged that a verdict could be returned in favor of the plaintiff if the malpractice deprived the patient of a chance of survival, regardless of how small that chance may have been. The court held:
Such a charge is implicit with danger in that it could reasonably be construed by jurors as judicial restraint on their obligation to find that the malpractice proximately caused the death. The ultimate finding cannot be whether the deceased would have a certain percentage chance of recovery; rather it must be whether there was a substantial possibility the decedent would have recovered but for the malpractice.
Id. at 985.
Turning to the defense of the informed consent cause of action, the statutory nature of the claim is important to the analysis of the proximate cause defense. See Public Health Law §2805-d. The burden of proof on the plaintiff to establish causation for lack of informed consent first requires that it be proven that a reasonable patient fully informed of the risks, benefits and alternatives of the procedure would not have consented. It must then be separately proven that the lack of a valid consent was the cause of the injury. Above and beyond that, Civil Practice Law and Rules Sec. 4401-a requires that the cause of action for lack of informed consent be dismissed at the close of the plaintiff’s case if the plaintiff has failed to adduce expert testimony in support of the alleged qualitative insufficiency of the consent. See Berger v. Becker, 272 A.D.2d 565 (2d Dept. 2000).
In actual practice, the causation issues tend to become merged when the experts, attorneys and court address the causation elements of the informed consent claim. In Salaam v. New York Hospital, 155 A.D.2d 389 (1st Dept. 1989), a seven-figure verdict in favor of a 39-year-old male patient who became blind after cataract surgery was vacated on appeal because there was insufficient expert testimony adduced at trial to support the claim of qualitative insufficiency of the consent. In Gardner v. Wider, 32 AD3d 728 (1st Dept. 2006), the trial court dismissed the informed consent claim prior to trial when it became apparent that the plaintiff intended to proceed without an expert and would not be able to produce the testimony required by CPLR §4401-a. Although counsel for the plaintiff stated his intention to rely upon the testimony of the defendant doctor to establish a prima facie case, the Appellate Division agreed with the trial judge that the deposition testimony of the defendant had supported the adequacy of the consent and there was no reason to speculate that the defendant would change his testimony to his legal detriment at trial. The dismissal was upheld.
Whole books could be written on the techniques whereby the maximum effect of expert analysis of potential causation defenses may be brought to bear. However, the first objective for defense counsel is to recognize that not every negligent act of a health care provider is a cause of injury to the patient. Just as it is not within the realm of knowledge of the average juror to sort these issues out absent expert testimony, it is incumbent upon defense counsel to examine the causation issues critically and seek out the expert input which will be needed to present a complete defense.
This article is also on Law.com: The Importance of Expert Analysis to the Defense of Causation