In its opinion filed on February 2, 2017, the Supreme Court of the State of Washington (“Washington Supreme Court”) held that a “but for” causation analysis, and not a “substantial factor” causation analysis, was appropriate in a loss of chance of a better outcome medical malpractice case.
In the case it was deciding, the plaintiff was diagnosed with melanoma on his left foot that subsequently required a partial amputation of his left leg. The plaintiff alleged in his Washington medical malpractice lawsuit that the defendant doctor was negligent in his cancer diagnosis, which deprived him of a 40% chance that the melanoma would not recur had a proper diagnosis and treatment occurred. The defendant alleged an affirmative defense of contributory negligence based on the plaintiff’s delay in returning for follow up care and his decision to seek a second opinion rather than undergo the recommended excision and biopsy. The defendant also asserted that a “but for” causation analysis applies in a loss of chance of better outcome medical malpractice claim.
The Substantial Factor Standard
The Appellate Court stated that in a medical malpractice action, the plaintiff must satisfy traditional tort elements of proof: duty, breach, injury, and proximate cause. The Appellate Court stated that its prior cases have consistently recognized two elements of proximate cause: cause in fact and legal causation. Cause in fact refers to the “but for” consequences of an act – the physical connection between an act and an injury. Yet, in a narrow class of cases, proximate cause is defined using a substantial factor test – it is an exception to the but for standard.
The Appellate Court stated that in certain circumstances the substantial factor standard is appropriate to use. First, the substantial factor test is used where either one of two causes would have produced the identical harm, thus making it impossible for the plaintiff to prove the “but for” test. In such cases, it is quite clear that each cause has played so important a part in producing the result that responsibility should be imposed on it. Second, the test is used where a similar, but not identical, result would have followed without the defendant’s act. Third, the test is used where one defendant has made a clearly proven but quite insignificant contribution to the result, as where he throws a lighted match into a forest fire.
The plaintiff argued in the case the Appellate Court was deciding that the facts fall within the first exception: that there were two causes of the 40% lost chance – the cancer and the defendant doctor’s medical negligence. The Appellate Court stated that a key distinction of loss of chance cases is that regardless of the negligence, the ultimate injury is likely to occur. Thus, if the Appellate Court were to hold that the underlying medical condition, such as cancer, is also a cause of the lost chance, then the Appellate Court would essentially be holding that in every loss of chance case, the two causes, the negligence and the underlying medical condition, produce an identical harm, which would render a substantial factor test applicable in every loss of chance case involving medical malpractice – there will always be negligence and an underlying medical condition. Thus, the Appellate Court held that using a substantial factor test would be inconsistent with traditional tort law and the plaintiff failed to show his case fits within an exception to the substantial factor test.
The Appellate Court concluded: “Traditional tort causation principles guide a loss of chance case. Applying these established principles, under the circumstances here, a but for cause analysis is appropriate.”
Source Dunnington v. Virginia Mason Medical Center, No. 91374-9.
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