INJURY LITIGATION ADVICE

 

Medical and Legal Causation

You may meet the situation where the physician thinks he cannot testify because he is not sure, he is not certain that the abnormalities exist, that the functional deficiencies will remain, or that progression will occur.


Doctors think of causal relationships differently. The following is an outline chart of those differences which can be overcome through mutual education and understanding:

Medical Viewpoint Meets Legal Needs


  1. A.To Cause - Produce THE new condition or pathology; To produce A new condition or pathology; To initiate an underlying disorder, To aggravate an underlying disorder by worsening, hastening, or accelerating its progression.


  1. B.The Cause - Etiologic elements, i.e., seeking to assign a cause; Whether a particular event was the proximate, precipitating cause of an injurious result; Various causes of an underlying disorder; One cause that precipitates, triggers, hastens, or worsens some medical condition; The multiplicity of causes and their interrelationships. The one causative element under legal scrutiny, independent of other, coexisting causes.


  1. C.Preexisting Disorder - The patient’s preexisting condition is important in affecting the end results of degenerative disease processes. The injured party is taken as he is found, not as a normal person, but subject to whatever existing medical conditions he had at the time of the event in question. It is important in a particular case that the injurious result would not have occurred in the absence of significant preexisting diseases. Increased vulnerability of the injured party to harm because of preexisting disease does not excuse the one who inflicts harm; it is immaterial that an accident, incident, or trauma would not have resulted in injury or disability, had the victim been in good to average health.  Because of preexisting disorder’s contributions to the end result, assigning responsibility should involve apportionment based on percentage responsibility for the end result. When death or disability occurs subsequent to a legally significant event, total responsibility is credited to the party affecting the event. Apportionment, in most cases, should not apply.


  1. D.The Amount of Aggravation - Responsibility should not be assessed when the degree of aggravation is small in relation to the extent of underlying pathology. The crux of legal causation is the occurrence or aggravation of an underlying disorder, not the degree to which is was aggravated. Responsibility should not be assessed when the degree of hastening of an inevitable end result was minor in relation to the entire clinical picture. The important consideration legally is whether a process and end result was hastened, not how much is was hastened. For example, if death is hastened even by a moment, the result is actionable. Responsibility should not be assessed when an end result is inevitable because of the expected natural progression of the underlying disorder. The inevitability of the end result is unimportant is that result occurred sooner than it would have occurred had the underlying disorder progressed naturally.


  1. E.Degree of Proof Required - Proof means scientific proof. Depending upon the jurisdiction, establishment of legal causation requires “probability,” “50.1 percent,” “more likely than not,” or “reasonable medical certainty,” not scientific proof.  Equally consistent theories of causation are acceptable as guides in choosing the appropriate medical treatment for the patient. Equally consistent theories of causation are acceptable as guides in choosing the appropriate medical treatment of the patient. The alleged causative element must be one recognized scientifically as a competent producing cause of the disorder. The alleged causative element must be one recognized scientifically as a competent producing cause of the disorder.


  1. F.Damages - Damages must be investigated, understood, and developed at or before case intake. It is common that liability takes a back seat in automobile accident cases and damages takes a back seat to proving negligence in medical malpractice cases. This different is not a reasonable one. Think of both the same way. The simple personal injury case is no different than a very complicated medical malpractice case. In these kinds of litigations, there is absolutely nothing at stake but money. Emotions get in the way but should not. Personal injury tort litigation is the only field of law where the only real remedy is money.


Equitable relief is hardly ever asked for. Understanding and proving damages always asks the same question is death has not occurred:


  1. Has the function of the injured person changed any?

  2. Has his/her lifestyle changed?

  3. Does the environment affect him/her differently, and how does he/she interact with it?

  4. What are the relationships to people around him/her and how have they changed?

  5. What is, was, and could his/her job have become?

  6. Did or does he/she need treatment?

  7. Will he/she need treatment? The condition may not be treatable. The condition may be progressive deterioration of an organ system for which there is no cure, treatment, or relief.

  8. How does the client look?

  9. Does his/her appearance create sympathy or is he/she not likable?