(Please note: the names and locations of all parties have been changed to protect the confidentiality of this medical malpractice case and its proceedings.)
IN ESPINOSA v. LITTLE COMPANY OF MARY HOSPITAL, THE SECOND DISTRICT REJECTED ARGUMENTS IDENTICAL TO DEFENDANTS’ ARGUMENTS HERE
Included in the Sources and Authorities supporting CACI 430, is a Court of Appeal case from the Second District, Espinosa, which applies the substantial factor standard specifically to a medical malpractice case. As the Honorable Justice Croskey stated in Espinosa, in cases alleging negligence, the proper test for proving causation is the one set out in BAJI no. 3.76 (8th ed. 1994 bound vol.): The law defines cause in its own particular way. A cause of injury, damage, loss of harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. (31 Cal.App.4th at 1313.) CACI 430 restates the substance of BAJI 3.76, in somewhat more plain and understandable language. Defendants ignore this controlling Second District case.
Also in Espinosa, as here, the Defendants relied primarily on Jones v. Ortho Pharmaceutical Corp (1985) 163 Cal.App.3d 396. (Compare, 31 Cal.App.4 th at 1320-1321, with Defendants’ Special Instruction # 1.) As the Second District noted, Jones is not a medical malpractice case. (31 Cal.App.4 th at 1320.) Perhaps more importantly, as the Second District also noted, Jones is distinguishable because it concerns causes of cancer which are yet unproven, which causation had to be proven by testimony about the statistical risk or likelihood of brain damage. (31 Cal.App.4th at 1320.) In Jones, as in the present case, causation does not depend on statistical probabilities. As Espinosa, here it also would be error to fail to apply the substantial factor standard of causation.
3. CACI INSTRUCTIONS OTHER THAN CACI 430 INSTRUCT THE JURY ON THE BURDEN OF PROOF AND THE DEGREE OF PROOF
Defendants seek to supplement CACI 430 apparently because it does not require that Plaintiffs establish causation to a reasonable degree of medical probability. To the contrary, reasonable medical probability means more likely than not. (See, Espinosa v. Little Company of Mary Hospital, supra, 31 Cal.App.4th at 1316.)
CACI instruction no. 400, with medical added before negligence as required by CACI Instruction no. 500, instructs the jury that the Plaintiff must prove the elements of medical negligence, including causation. CACI instruction no. 200 instructs the jury on the requisite degree of proof to establish the elements of the negligence cause of action. Therefore, together CACI nos. 200 and 400 [as modified by 500] instruct the jury that Plaintiff must prove the elements of his case, including causation, by the more likely than not standard. An additional instruction on this same issue, stated in legalese ( reasonable medical probability ) rather than plain language ( more likely to be true than not true ), would place undue emphasis on Plaintiffs burden and confuse the jury.
4. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the court refuse Defendants’ special instruction # 1.
CACI INSTRUCTIONS OTHER THAN CACI 430 INSTRUCT THE JURY ON THE BURDEN OF PROOF AND THE DEGREE OF PROOF
Defendants seek to supplement CACI 430 apparently because it does not require that Plaintiffs establish causation to a reasonable degree of medical probability. To the contrary, reasonable medical probability means more likely than not. (See, Espinosa v. Little Company of Mary Hospital, supra, 31 Cal.App.4th at 1316.)
CACI instruction no. 400, with medical added before negligence as required by CACI Instruction no. 500, instructs the jury that the Plaintiff must prove the elements of medical negligence, including causation. CACI instruction no. 200 instructs the jury on the requisite degree of proof to establish the elements of the negligence cause of action. Therefore, together CACI nos. 200 and 400 [as modified by 500] instruct the jury that Plaintiff must prove the elements of his case, including causation, by the more likely than not standard. An additional instruction on this same issue, stated in legalese ( reasonable medical probability ) rather than plain language ( more likely to be true than not true ), would place undue emphasis on Plaintiffs burden and confuse the jury.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the court refuse Defendants’ special instruction # 1.
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