Any negligence claim has four components: duty, breach, causation, and damages. As the plaintiffs it is our burden to prove each of those elements on a more likely than not basis. This burden is different from criminal law – where the state must prove its case beyond a reasonable doubt – but has its own challenges. While often times the duty and breach may appear easy to prove, a lot of cases get caught up on the element of causation. And sometimes cases get hung up on causation: it is the provider’s failure to meet the standard of care that may make it difficult to prove causation.
First, though, what is causation? Think of it this way: did the breach cause the injury? In a non-medical negligence context, imagine a car speeding along a narrow Seattle side street. At 60MPH the driver is clearly breaching his duty to drive safely. But, until he crashes into someone, he has not caused any collision or injury, so he is not negligent.
In the medical negligence arena, cases often fail for lack of causation. For example, we represented a gentleman who developed one form of slow growing cancer that was allowed to develop for years due to a provider’s negligence. It was discovered, treatment began, and he responded well. Several months later he developed an aggressive cancer that quickly spread through his vital organs and took his life. We, naturally, assumed the aggressive cancer had been a mutation from the original cancer, but we were wrong. It was a completely different type of cancer and we could not prove this deadly cancer – and our client’s death – was due to negligence.
Sometimes plaintiffs are unable to prove negligence because the providers did not do what they were supposed to do: they did notice, identify, or record any abnormality that later proved to be cancer. We are then left with the presumption that the cancer had to be there, based on circumstantial evidence (logic and science), but with no direct evidence that it was. And the provider and their staff will, in deposition, deny they ever saw any abnormality. And patients are again left in the cold, frustrated and upset.
