Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of this medical malpractice case and its proceedings.)
The following four blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.
ESPINOSA v. LITTLE COMPANY OF MARY HOSPITAL AFFIRMS THE REQUIREMENT THAT CAUSATION BE ESTABLISHED TO A REASONABLE DEGREE OF MEDICAL PROBABILITY IN A MEDICAL MALPRACTICE ACTION
Espinosa specifically applies the substantial factor test to medical malpractice actions, to determine that the element of causation is satisfied when a plaintiff produces evidence to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability that the plaintiff would have obtained a better result. Espinosa v. Little Company of Mary Hospital (1995) 31 Cal.App.4th 1304, 1314-5. (Quoting, Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.)
Plaintiff’s understanding of Espinosa is entirely misguided. The Espinosa court did not address the issue of how the jury should be instructed regarding causation in a medical malpractice action. Rather, the issue before the court was whether the plaintiff actually presented expert testimony that could satisfy the plaintiff’s burden to prove causation to a reasonable medical certainty. In conducting its analysis on that issue, the Espinosa court began its evaluation by expressing support for the language of BAJI 3.76, as used in general negligence cases.
Indeed, only through careful and creative excerpts can the plaintiff manage to imply that Espinosa rejected the use of reasonable medical probability as a jury instruction.
The court states: 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 or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. Id. at 1313-4. Plaintiffs acknowledge in their trial brief on this issue that the language of CACI 430 is substantially similar to that of BAJI 3.76. (See Part 3 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.