Our series on Medicine and the Law continues. Previously, I wrote about what is necessary for a physician-patient relationship to exist — contract and consent. Then I went on to discuss medical malpractice and that a legitimate grievance from a patient must show that the physician has a duty to the patient, violated that duty by departing from the standard of care, and that the violation caused harm to the patient. Causation is not a simple cut and dry thing to show.

In general, most common people understand the concept of cause. In legalese, there are two types of cause — proximate and cause-in-fact. Cause in fact means that the act must have been necessary for the outcome, even if the act is not the only cause of the outcome. An example would be when a surgeon operates on a patient who has other co-morbidities such as severe clotting disorder. During the surgery on another part of her body, she suffers a clot. In this case, the surgeon may be liable for the clot even though it was partly the result of her pre-existing condition.

On the other hand, proximate cause is when even though the physician’s act was the factual cause of a patient’s injury, the type of injury is so unlikely and unforeseeable that liability for the physician would be in conflict with general public policy. An example would be when a patient has a very rare disease that causes a poor reaction to a physician’s treatment. In that case although the treatment was the cause, it was so unforeseeable that there should be no liability. In other words, nothing could have prevented it and it could have happened to any other physician providing that patient treatment.

One thing a physician has in his/her defense is called contributory negligence. A physician can always claim the defense of contributory negligence — that the patient’s negligence contributed to the injury. An example of this would be when a patient does not tell his doctor of an allergy to medicine and the doctor prescribes the medicine and the patient has a bad reaction. Another example would be when a patient does not tell her plastic surgeon that she previously had surgery before on that same body part. The surgeon encounters difficult scar tissue during the surgery and must resect tissue that affects the cosmetic outcome of the patient.

In these situations the physician’s liability can often be reduced to partial liability or no liability.

Thus as you can see, it is not a simple cause and effect relationship when it comes to medical liability. All parties are usually involved and thus there is the need by doctors and patients to be upfront about history, expectations, and desired outcomes when it comes to medical care.

Related Articles

• Medicine and the Law - Part 6: Third Party Liability
• Medicine and the Law - Part 5: Abandonment
• Medicine and the Law - Part 4: Informed Consent
• Series
• What is a D.O.?