Proximate cause: No harm, no foul?

By Charles A. Pilcher MD FACEP

In the course of nearly 3 decades of reviewing medical records for both plaintiff and defense attorneys, I find the most challenging of the 4 elements necessary for a successful malpractice lawsuit to be “proximate cause” or “causation.” This is often the Achilles heel of malpractice for the plaintiff and his/her attorney, and salvation for the defendant physician.

Duty: A defendant physician usually has a “duty” to treat. In my experience, “duty” is rarely an issue.

Breach of duty: Finding that the standard of care was breached, i.e., “breach of duty,” is the first task of a medical expert. Again, in my experience, the medical record is usually sufficient to indicate whether the defendant physician/hospital fulfilled its duty or not. Tests, exams or treatments that should have been done, based on the patient’s presenting problem, and were not done – when compared to the practice of a standard prudent physician – are usually apparent, or at least subject to reasonable expert debate that a lay jury can then reasonably be expected to sort out.

Damages: ‘Damages” are usually also rather apparent. Had the alleged malpractice not occurred, and an injury thus have been avoided, a plaintiff argues that certain increased costs, reductions in lifestyle, etc., resulted. A price tag valuing those losses or costs is then calculated. A medical expert may assist in evaluating those elements, but  often damages can be defined by non-medical specialists.

Proximate cause: Whether the patient’s outcome was changed as a direct result of a breach of the standard of care is, in this author’s opinion, the most challenging for both the medical expert and the attorney, whether defense or plaintiff. Medicine is as much art as science and is practiced by human beings prone to error. Often, that error is obvious – and disappointing – to both medical experts and plaintiffs. But where the rubber meets the road is in the determination of “proximate cause.” Did the breach of duty really change the outcome? Was it the proximate cause, or would the patient’s outcome most likely have been the same even if the standard of care had not been breached?

Common examples with which this author has been confronted are:
Missed appendicitis: A physician is presented with a patient with classic symptoms of appendicitis, and misses the diagnosis. The appendix is removed at another hospital 24 hours later, and found to be ruptured. Did the missed diagnosis change the outcome? Possibly. Was the appendix already ruptured at the first presentation? Perhaps. Is there agreement amongst surgeons about the results of delay in performing an appendectomy? No.
Transient Ischemic Attack (TIA): A physician properly evaluates a patient (including CT scan, lab work and a carotid ultrasound; ABCD score = 3) and properly diagnoses a brief, mild TIA. Within an hour, all symptoms have resolved. The patient is already on aspirin. The doctor discharges the patient with instructions to see his PCP or a neurologist within a week. Three days later the patient has a stroke. Was there anything more that the first physician should have done to prevent the patient’s stroke, and was that the proximate cause of the stroke? Probably not.
Fracture: A patient rolls his ankle in a basketball game and sees his physician for an x-ray, which the doctor reads as normal. The patient is placed in a splint and advised to use crutches and gradually resume weight-bearing. A week later the patient still cannot walk and goes to the ER. Another x-ray is obtained, showing a slight fracture at the base of the 5th metatarsal. On review of the original films – and with 20/20 hindsight – the fracture is indeed visible. Yes, the standard of care was breached, but did that breach cause damages that would not otherwise have occurred? Probably not. The fracture would have kept the patient on crutches for the full week anyway. Or, sometimes the fracture just stops hurting and the patient gradually resumes normal activities never knowing that a fracture was actually present.

In this author’s opinion, “proximate cause” is the sticky wicket in many alleged cases of malpractice, and the one in which the greatest variety of expert opinions can be found. When the issue of “proximate cause” will determine the course of a case, whether to pursue, defend or settle, attorneys would be well advised to seek more than one expert opinion.

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