The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)
The court very effectively discusses the proximate causation requirement which Plaintiffs must meet: We find persuasive on this issue the following discretion and standard from Cooper v. Sisters of Charity of Cincinnati, as set forth in the brief of respondents:
Traditional proximate cause standards require that the trier of facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act in the absence of any intervening cause. Lesser standards of proof are understandably attractive in malpractice cases where physical well-being and life itself are subject to litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that an action for wrongful death, an injured person would be compensated for the loss of any chance of survival regardless of the remoteness.
However, we have trepidations that such a rule would be so loose, that it would produce more injustice than justice. Even though there exists authority for a rule allowing recovery based on proof of causation by evidence not meeting the standard for probability, we are not persuaded by their logic … we consider the better rule to be that in order to comport with the standard of proof and proximate cause, plaintiff in a malpractice case must prove that defendant’s negligence, and probability, proximately caused the damages.
The authorities in this state are in accord with this malpractice case in that a mere possibility alone is not sufficient. Since the decision in Morgenroth, supra, the California courts have refused to loosen the probability standard of proximate cause. In Simmons v. West Covina Medical Clinic, (1989) 212 Cal.App.3d 696, the plaintiff parents of a child afflicted with Down syndrome brought an action for an alleged failure to order a test wherein it was established that even if the test had been given, there was only a 20% chance that the affliction would have been detected. The court held where expert evidence demonstrates less than a 50% chance of predicting or affecting outcome, the plaintiffs fell short of the requisite reasonable medical probability standard of causation and summary judgment must be granted. Id. The court in Simmons states:
A less than 50/50 possibility that a defendant’s omission caused the harm does not meet the requisite reasonable medical probability test of causation. Id. at 702-703. Citing Jones v. Ortho Pharmaceutical, 163 Cal.App.3d 403-404. (See Part 4 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.