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Sidebar - Close Enough to Count · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

• 0:03
  SPEAKER_00: This is Statute Stephen Sports.
• 0:06
  SPEAKER_00: I'm Tracy Libertori.
• 0:08
  SPEAKER_00: Every episode I take one place where medicine and the courtroom collide and break down what actually works.
• 0:14
  SPEAKER_00: You're a clinician who wants this work or an attorney who needs an expert who can hold up.
• 0:19
  SPEAKER_00: You're in the right place.
• 0:20
  SPEAKER_00: Let's get into it.
• 0:25
  SPEAKER_00: Last week in No Damages No Case, we talked about causation.
• 0:30
  SPEAKER_00: I mentioned proximate cause and I said it deserved an episode of its own.
• 0:34
  SPEAKER_00: This is that episode, because it's one of the most misunderstood ideas in medical negligence, and it's one clinicians rarely hear explained.
• 0:44
  SPEAKER_00: Let me start with a case.
• 0:46
  SPEAKER_00: An 84-year-old nursing home resident is assessed as a high fall risk.
• 0:50
  SPEAKER_00: Her care plan calls for a bed alarm and help with every transfer.
• 0:54
  SPEAKER_00: One night the alarm isn't on, she gets up alone and she falls.
• 0:58
  SPEAKER_00: She breaks her hip, she's taken to the hospital and has surgery.
• 1:01
  SPEAKER_00: After surgery, she develops pneumonia, and 11 days later, she dies.
• 1:05
  SPEAKER_00: Did the nursing home cause her death?
• 1:08
  SPEAKER_00: Most clinicians would say something like, Well, she wouldn't have been in the hospital if she hadn't fallen.
• 1:14
  SPEAKER_00: And that's true, but that's only half of the question the law asks.
• 1:19
  SPEAKER_00: That's where proximate cause comes in.
• 1:21
  SPEAKER_00: Last week we talked about but for causation.
• 1:25
  SPEAKER_00: But for the breach, would the harm still have happened?
• 1:28
  SPEAKER_00: That's called cause in fact.
• 1:30
  SPEAKER_00: It's the factual chain.
• 1:33
  SPEAKER_00: And factual chains can go on forever.
• 1:36
  SPEAKER_00: If the resident's daughter hadn't picked that facility, she wouldn't have fallen there.
• 1:40
  SPEAKER_00: If the night nurse hadn't been called to cover a shift, maybe someone else would have checked the alarm.
• 1:44
  SPEAKER_00: At some point, the law has to draw a line and say, this far and no farther.
• 1:49
  SPEAKER_00: Proximate cause is where that line gets drawn.
• 1:52
  SPEAKER_00: It's sometimes called legal causation.
• 1:55
  SPEAKER_00: It asks whether the harm is closely enough connected to the breach and was a foreseeable enough result of it that it's fair to hold the provider responsible.
• 2:08
  SPEAKER_00: So there are really two questions.
• 2:12
  SPEAKER_00: Did the breach cause the harm in fact?
• 2:15
  SPEAKER_00: And is the connection close enough that the law will count it?
• 2:20
  SPEAKER_00: And different states describe this in different ways.
• 2:23
  SPEAKER_00: Of course, as with everything.
• 2:25
  SPEAKER_00: Many use what's called the substantial factor test.
• 2:28
  SPEAKER_00: Here in Pennsylvania, for example, the question is generally whether the conduct was a substantial factor in bringing about the harm, not the only factor, not the biggest factor, a substantial one that matters because patients rarely have one clean cause for anything.
• 2:45
  SPEAKER_00: They have diabetes, they have heart failure, dementia, and a breach all at once.
• 2:50
  SPEAKER_00: There can be more than one proximate cause of the same injury and more than one responsible party.
• 2:56
  SPEAKER_00: The heart of proximate cause is foreseeability.
• 3:00
  SPEAKER_00: Was this the kind of harm that a reasonable provider could have seen coming as a risk of the breach?
• 3:07
  SPEAKER_00: A fall in a high-risk resident leads to a hip fracture.
• 3:11
  SPEAKER_00: That's foreseeable.
• 3:12
  SPEAKER_00: It's exactly why the fall precautions were ordered.
• 3:16
  SPEAKER_00: A hip fracture in a frail elderly patient leads to surgery, immobility, and pneumonia.
• 3:23
  SPEAKER_00: Clinically, that's a well-known path.
• 3:26
  SPEAKER_00: So when you work through our case, the chain from the missing bed alarm to the death may hold together, even though the death happened in a different building 11 days later.
• 3:37
  SPEAKER_00: So how far can it go?
• 3:39
  SPEAKER_00: That question takes every lawyer back to the first year of law school.
• 3:43
  SPEAKER_00: One famous case, Paulsgraph versus Long Island Railroad, decided by New York's highest court in 1928.
• 3:50
  SPEAKER_00: And here's what happened: a man carrying a package was running to catch a train that was already pulling out.
• 3:57
  SPEAKER_00: Two railroad employees helped push and pull him up aboard.
• 4:01
  SPEAKER_00: And in the process, a package fell onto the tracks.
• 4:04
  SPEAKER_00: Nobody could tell by looking at it, but it was full of fireworks.
• 4:08
  SPEAKER_00: And guess what?
• 4:10
  SPEAKER_00: It exploded.
• 4:11
  SPEAKER_00: The shock knocked over some heavy scales at the other end of the platform, and they fell on a woman named Helen Paulsgraf, who was standing there waiting for her own train.
• 4:22
  SPEAKER_00: Were the railroad employees careless?
• 4:25
  SPEAKER_00: Maybe.
• 4:26
  SPEAKER_00: Toward the man with the package?
• 4:28
  SPEAKER_00: But could anybody have foreseen that helping him onto a train would have injured a woman standing far down on the platform?
• 4:35
  SPEAKER_00: The court said no.
• 4:36
  SPEAKER_00: Judge Cardozo wrote that the risk reasonably to be perceived defines the duty to be obeyed.
• 4:44
  SPEAKER_00: In other words, you're responsible for the harms you could reasonably see coming to the people you could reasonably see being hurt.
• 4:52
  SPEAKER_00: Miss Paul's graph lost.
• 4:55
  SPEAKER_00: There was a famous dissent from Judge Andrews, and it's worth hearing too.
• 4:59
  SPEAKER_00: He agreed that there has to be a limit somewhere.
• 5:02
  SPEAKER_00: He said the law draws that line, and I'm quoting, because of convenience, of public policy, of rough sense of justice.
• 5:10
  SPEAKER_00: He just would have drawn it in a different place.
• 5:13
  SPEAKER_00: That's really the lesson of Paul's graph.
• 5:15
  SPEAKER_00: Proximate cause isn't a scientific test, it's a judgment about fairness and foreseeability, and is the tool the law uses to make it.
• 5:25
  SPEAKER_00: So last week I gave a quick example of this.
• 5:28
  SPEAKER_00: So let me build it out.
• 5:30
  SPEAKER_00: A woman is injured and breaks her arm.
• 5:32
  SPEAKER_00: On the way to the hospital, the ambulance crew drops her stretcher and she's hurt again.
• 5:37
  SPEAKER_00: Then the doctor at the hospital doesn't set the arm properly and she ends up with a worse result.
• 5:42
  SPEAKER_00: None of that would have happened without the original injury.
• 5:45
  SPEAKER_00: So is the person who caused the original injury responsible for all of it?
• 5:49
  SPEAKER_00: In many states, the general answer is yes.
• 5:53
  SPEAKER_00: The law has long treated the risk of getting help for an injury as foreseeable results of causing the injury in the first place.
• 6:00
  SPEAKER_00: That includes the ambulance ride, and it includes medical care, even medical care that's done negligently.
• 6:06
  SPEAKER_00: If you cause someone to need an ambulance and a hospital, you take the risk that comes with that.
• 6:13
  SPEAKER_00: The ambulance company and the doctor may be responsible too for their own mistakes, and the damages get sorted out amongst everyone.
• 6:20
  SPEAKER_00: But the original wrongdoer usually doesn't get off the hook just because someone else made the second mistake along the way.
• 6:26
  SPEAKER_00: That's proximate cause, and it's all about what's foreseeable.
• 6:31
  SPEAKER_00: The same thinking applies to our nursing home resident.
• 6:34
  SPEAKER_00: If she's given the wrong medication at the hospital after surgery, that doesn't automatically break the chain back to the missing bed alarm.
• 6:41
  SPEAKER_00: What can break the chain is called a superseding cause.
• 6:46
  SPEAKER_00: That's something so unexpected, so far outside the normal risk of the situation, that the law says the original breach is no longer a fair place to put the responsibility.
• 6:58
  SPEAKER_00: So think about something truly random, like a stranger who walks into the hospital room and attacks her.
• 7:04
  SPEAKER_00: And usually there is acts of God and things like that are just normally considered outside the realm of what would normally happen.
• 7:11
  SPEAKER_00: The fall put her in that room, but most courts would see an attack like that, or an earthquake or something, as a new and independent event, not a risk the nursing home created.
• 7:23
  SPEAKER_00: The dividing line between a foreseeable intervening event and a superseding one is exactly the kind of thing lawyers argue about.
• 7:31
  SPEAKER_00: And the rules vary by state.
• 7:33
  SPEAKER_00: And if you could think about being in California, you might even almost argue it's an earthquake foreseeable, perhaps.
• 7:39
  SPEAKER_00: A few more ideas you'll run into.
• 7:41
  SPEAKER_00: First, the eggshell skull rule or the eggshell plaintiff rule.
• 7:46
  SPEAKER_00: You take the patient as you find them.
• 7:48
  SPEAKER_00: If a frail patient suffers far more harm from a breach than a healthy person would have, the provider generally can't argue that a stronger patient would have been just fine.
• 7:59
  SPEAKER_00: Her fragility isn't a defense.
• 8:01
  SPEAKER_00: That doesn't mean her preexisting conditions don't matter.
• 8:05
  SPEAKER_00: They matter a lot for the damages and for separating what the breach caused from what her illnesses were going to cause anyway.
• 8:12
  SPEAKER_00: That's where your clinical judgment comes in.
• 8:15
  SPEAKER_00: Second, increased risk of harm, which you may hear called loss of chance.
• 8:20
  SPEAKER_00: Sometimes the question isn't whether proper care would have definitively prevented the outcome, but whether the breach took away a real chance of a better one, a delayed cancer diagnosis, a late response to a change in condition.
• 8:33
  SPEAKER_00: Pennsylvania, for example, has allowed these cases to go to the jury when the breach increased the risk of harm that happened.
• 8:40
  SPEAKER_00: Other states handle it differently, and some don't recognize it at all.
• 8:44
  SPEAKER_00: Again, ask the attorney which rule applies.
• 8:47
  SPEAKER_00: So, what does all this mean for you as an expert?
• 8:50
  SPEAKER_00: Here's the most important point.
• 8:53
  SPEAKER_00: Proximate cause is ultimately a legal question, and the jury decides it.
• 8:58
  SPEAKER_00: Your job is to give them the medical facts they need to decide it.
• 9:02
  SPEAKER_00: That means explaining the mechanism.
• 9:05
  SPEAKER_00: What was the breach?
• 9:07
  SPEAKER_00: What did it lead to?
• 9:08
  SPEAKER_00: Step by step.
• 9:09
  SPEAKER_00: Was each step a known clinical consequence of the one before it?
• 9:14
  SPEAKER_00: What role did the patient's other conditions play and what likely would have happened with proper care?
• 9:19
  SPEAKER_00: That's why I'm always careful about language in reports.
• 9:23
  SPEAKER_00: The attorney will tell you how opinions need to be phrased in their state.
• 9:27
  SPEAKER_00: Many courts want causation opinions stated to a reasonable degree of medical certainty or medical probability, and the wording matters.
• 9:35
  SPEAKER_00: What you want to avoid is simply writing the legal conclusion.
• 9:39
  SPEAKER_00: A sentence that says the facility's negligence was the proximate cause of the death doesn't help anyone.
• 9:44
  SPEAKER_00: A paragraph that walks through the fall and the fracture and the surgery, immobility, pneumonia, and death, and explains why each step followed from the last and how they all connect together gives the attorney something to build on and gives the jury something to believe and to understand.
• 10:02
  SPEAKER_00: And be honest about the weak links.
• 10:05
  SPEAKER_00: If the patient had advanced disease and was likely to decline in that time frame anyway, say so.
• 10:12
  SPEAKER_00: If there's a gap in the chain you can't fill medically, tell the attorney early.
• 10:18
  SPEAKER_00: Opposing counsel will look for the missing step, and it's far better that you found it first.
• 10:24
  SPEAKER_00: So here's the takeaway.
• 10:37
  SPEAKER_00: Foreseeability is the heart of it, and as Paul's graph taught every first-year law student, the line is a judgment about fairness.
• 10:45
  SPEAKER_00: Harm from medical treatment for an injury usually stays connected.
• 10:50
  SPEAKER_00: Truly unexpected events can cut the chain.
• 10:53
  SPEAKER_00: And your role is to lay out every link clearly and honestly so the people deciding the case can see it.
• 11:00
  SPEAKER_00: This is educational information, not legal advice.
• 11:03
  SPEAKER_00: Proximate cause rules vary by state, and the attorney on the case can explain how they work in their jurisdiction.
• 11:10
  SPEAKER_00: This episode of Statutes and Stethoscopes.
• 11:13
  SPEAKER_00: If it was useful, follow the show so the next one finds you.
• 11:16
  SPEAKER_00: And if you're a clinician who wants to do this work properly, start with the Expert Report Starter Kit at National Expert Academy.com.
• 11:24
  SPEAKER_00: I'm Tracy Libratori.
• 11:25
  SPEAKER_00: I'll see you on the next episode.