Medicine and the Law

Medicine and the Law

Causation in a fault based system

The Common LawThe Common Law

The system of law that governs:

England & Wales Ireland USA and most Canadian States Australia New Zealand

The system of law that governs:

England & Wales Ireland USA and most Canadian States Australia New Zealand

TortTort

The breach of an obligation placed upon a person by the law

Note: The obligation is imposed by law The State does not enforce compliance with the

obligation The remedy for breach of the obligation is

normally monetary Punishment is not the primary purpose of

litigation

The breach of an obligation placed upon a person by the law

Note: The obligation is imposed by law The State does not enforce compliance with the

obligation The remedy for breach of the obligation is

normally monetary Punishment is not the primary purpose of

litigation

Negligence or fault-based liabilityNegligence or fault-based liability

3 Main INGREDIENTS

A duty to take care A breach of that duty Loss or injury caused by that breach

3 Main INGREDIENTS

A duty to take care A breach of that duty Loss or injury caused by that breach

CausationCausation

The defs breach must have caused the claimant’s damage AND the damage must be such that the law regards it proper to hold the def responsible for it.

The defs breach must have caused the claimant’s damage AND the damage must be such that the law regards it proper to hold the def responsible for it.

Injury caused by the breachInjury caused by the breach

CAUSE IN FACT PROVED

The "But for" test Barnett v Kensington & Chelsea HMC

Drs breach in not seeing him didn’t cause death –he would have died anyway…=> not liable

Generally "but for" test must be fulfilled But there have always been exceptions Summers v Tice and Cook v Lewis

CAUSE IN FACT PROVED

The "But for" test Barnett v Kensington & Chelsea HMC

Drs breach in not seeing him didn’t cause death –he would have died anyway…=> not liable

Generally "but for" test must be fulfilled But there have always been exceptions Summers v Tice and Cook v Lewis

Summers v. TiceSummers v. Tice

Supreme Court of California, 1948. 33 Cal.2d 80, 199 P.2d 1. Facts: Two guys were trying to shoot a

quail but missed and one of them hit the plaintiff. Nobody knows which one, but one and only one defendant hit the plaintiff. The plaintiff sued and won verdicts at trial against both defendants.

Supreme Court of California, 1948. 33 Cal.2d 80, 199 P.2d 1. Facts: Two guys were trying to shoot a

quail but missed and one of them hit the plaintiff. Nobody knows which one, but one and only one defendant hit the plaintiff. The plaintiff sued and won verdicts at trial against both defendants.

Summers v TiceSummers v Tice

Issue: Can both defendants be held liable when only one was in fact responsible?

Rule: Both defendants may be held liable if both were negligent.

Analysis: As a matter of policy, confusion over who dunnit should not bar recovery by the plaintiff. Since the court finds that both defendants were negligent and thus both in the wrong, it is not considered unfair to make them both pay. The court argues that if one was more responsible than the other, they should fight it out amongst themselves.

Conclusion: The judgment of the trial court was affirmed.

Issue: Can both defendants be held liable when only one was in fact responsible?

Rule: Both defendants may be held liable if both were negligent.

Analysis: As a matter of policy, confusion over who dunnit should not bar recovery by the plaintiff. Since the court finds that both defendants were negligent and thus both in the wrong, it is not considered unfair to make them both pay. The court argues that if one was more responsible than the other, they should fight it out amongst themselves.

Conclusion: The judgment of the trial court was affirmed.

Summers v Tice and Cook v Lewis(1952)Summers v Tice and Cook v Lewis(1952)

Because the damage is clear and can be proven, but which of the two defs was the tortfeasor cannot be determined, the onus is on one of the defs to exculpate himself

Both acted in a way that was at least potentially negligent.

Because the damage is clear and can be proven, but which of the two defs was the tortfeasor cannot be determined, the onus is on one of the defs to exculpate himself

Both acted in a way that was at least potentially negligent.

Injury caused by the breachInjury caused by the breach

CAUSE IN FACT PROVED

material contribution sufficient in cumulative exposure cases Bonnington Castings v Warlow [1956] Silica dust –2 sources -pneumoconiosis Def could be liable if breach contributed

materially to damage suffered.

CAUSE IN FACT PROVED

material contribution sufficient in cumulative exposure cases Bonnington Castings v Warlow [1956] Silica dust –2 sources -pneumoconiosis Def could be liable if breach contributed

materially to damage suffered.

material contribution equated with increased risk in single employer cases McGhee McGhee v National Coal Board

(1973) Coal dust -Lack of shower facilities -

Dermatitis ? Reversal of burden of proof when scientific

knowledge is limited or might be elusive to a lay person.

Decision reversed in Wilsher v Essex AHA Burden of proof remains with claimant

material contribution equated with increased risk in single employer cases McGhee McGhee v National Coal Board

(1973) Coal dust -Lack of shower facilities -

Dermatitis ? Reversal of burden of proof when scientific

knowledge is limited or might be elusive to a lay person.

Decision reversed in Wilsher v Essex AHA Burden of proof remains with claimant

Injury caused by the breachInjury caused by the breach

CAUSE IN FACT PROVED

now equated with increased risk in multiple employer cases Fairchild v Glenhaven Funeral Services Ltd [2002] Claimants exposed to asbestos dist over several

years and by several employers – Mesothelioma HL held unanimously EACH employer was liable (each materially increased risk to C’s)

CAUSE IN FACT PROVED

now equated with increased risk in multiple employer cases Fairchild v Glenhaven Funeral Services Ltd [2002] Claimants exposed to asbestos dist over several

years and by several employers – Mesothelioma HL held unanimously EACH employer was liable (each materially increased risk to C’s)

Injury caused by the breachInjury caused by the breach

CAUSE IN FACT PROVED

The Chester v Ashfar case in England and Chappel v Hart in Australia

CAUSE IN FACT PROVED

The Chester v Ashfar case in England and Chappel v Hart in Australia

Cause in fact not provedCause in fact not proved

Several possible causes of which the breach is only one. Wilsher v Essex AHA

emphasised strict adherence to the principle that it was for the Claimant to prove that a particular Defendant had caused the damage – on a balance of probabilities.

Several possible causes of which the breach is only one. Wilsher v Essex AHA

emphasised strict adherence to the principle that it was for the Claimant to prove that a particular Defendant had caused the damage – on a balance of probabilities.

Where the breach results in a loss of a chance of a cure - Hotson v East Berkshire AHA (75%-100%) Gregg v Scott (42%-20%)

Where the breach results in unquantifiable damage

Where the breach results in a loss of a chance of a cure - Hotson v East Berkshire AHA (75%-100%) Gregg v Scott (42%-20%)

Where the breach results in unquantifiable damage

Cause in LawCause in Law

Limitation on recoverability as a consequence of policy

"Policy" wrapped up in lawyer's terminology

Foreseeability

Proximity

"Fair, just and reasonable" - damage outside the scope of the duty

Limitation on recoverability as a consequence of policy

"Policy" wrapped up in lawyer's terminology

Foreseeability

Proximity

"Fair, just and reasonable" - damage outside the scope of the duty

Cause in Law (continued)Cause in Law (continued)

Foreseeability The need for the type of damage

sustained to be within the reasonable contemplation of the tortfeasor

But note the so-called "thin skull rule“ Note also the extent of the damage need

not be foreseeable Note also that the damage sustained

need not be a likely or a probable consequence of the breach

Foreseeability The need for the type of damage

sustained to be within the reasonable contemplation of the tortfeasor

But note the so-called "thin skull rule“ Note also the extent of the damage need

not be foreseeable Note also that the damage sustained

need not be a likely or a probable consequence of the breach

Cause in Law (continued)Cause in Law (continued)

Proximity

Limits on the class of people to whom a duty is owed.

Limits on the scope of the duty owed

Proximity

Limits on the class of people to whom a duty is owed.

Limits on the scope of the duty owed

ConclusionsConclusions

Are the restrictions to causation in fact legitimate, practical and fair?

Are the restrictions to causation in law appropriate?

Is there a better way of limiting liability for a medical accident?

Are the restrictions to causation in fact legitimate, practical and fair?

Are the restrictions to causation in law appropriate?

Is there a better way of limiting liability for a medical accident?