Causation In Fact

Front 1

Causation in fact

Back 1

When, as a factual matter, D's conduct is cause of P's injury.

But for, substantial factor, alternative causation, loss of chance

Front 2

But for

Back 2

An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act.

Would harm still have resulted if the D didn't act?

Front 3

Concurrent causes

Back 3

The but for test still applies where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient (ie. two negligently driven cars collide, injuring a passenger).

But for any of the acts, the injury would not have occurred.

Front 4

Substantial Factor (Joint causes)

Back 4

Applies in cases where we have multiple D's and a comingled cause. 2 D's or more do something negligent, that releases forces into the world, forces can operate independently for a period of time, but ultimately, they meet and merge into a single force and the combined force goes forward to harm the P.

Landers case.

Ask whether the conduct of each D was a substantial factor in bringing about the P's harm.

Ex: Two fires meet and burn a farm. Either fire alone would have done thedamage without the other. Under the “but for” test, neither was the “cause,”since, looking at either fire alone, the loss would have occurred without it.Rather than reach this result, the courts consider as causes all those thingsthat were a “substantial factor” in causing injury

Front 5

Alternative causation (shifting burden of proof)

Back 5

Aproblem of causation exists where two or more persons have been negligent, butuncertainty exists as to which one caused plaintiff’s injury. Under thealternative causes approach, plaintiff must prove that harm has been caused tohim by one of them (with uncertainty as to which one). The burden of proof thenshifts to defendants, and each must show that his negligence is not the actualcause.

1. Example:Alex and Basil both negligently fire shotguns in Clara’s direction. Clara ishit by one pellet, but she cannot tell which gun fired the shot. Under thealternative causes approach, Alex and Basil will have to prove that the pelletwas not theirs. If unable to do this, they may both be liable. (Summers v.Tice)a. 50/50chance of each shooter, fails traditional but for test b. Pis not required to prove which hunter shot him in the eye, the burden shifts tothe D’s to try to absolve one or the other from liability. c. Can’tshift burden until you prove breach of all D’s d. Leftto apportion damages among themselves when causation is indeterminable

Front 6

Difference between Summers and Landers

Back 6

- Landers

- BothD’s contributed salt to lake - Bothsufficient cause separately of P’s injuries b.

- Summers/Tice OneD didn’t not in fact hit P. That D’s actions were definitely not cause of P’sinjuries.

Front 7

Loss of Chance

Back 7

In medical practice, where P would have had a greater chance of recovery if doctor had acted at required standard of care.

Front 8

Methods for determining loss of chance

Back 8

Loss of chance, traditional, and relaxed causation

Front 9

Pure Loss of chance

Back 9

- Rather than determine whether the patient's physical injury was caused by the physician's negligence, courts adopting the"pure" loss of chance doctrine examine whether the physician was probably responsible for the patient's lost chance for survival.

- This lost chance then becomes the injury for which damages are sought, rather than the actual physical injury or death the patient suffered.

- Because pure loss of chance recognizes a lost chance of recovery, however small, as the compensable interest, traditional rules for proving causation are preserved: the plaintiff must prove that the physician was the cause in fact of the patient's injury or lost chance of recovery.

- They retain traditional causation rules and adopt a percentage probability test to more accurately calculate damages.

- The probability of long-term survival is reflected in the amount of damages awarded for the lost chance.

- For example, where a patient had a forty percent chance of survival with timely diagnosis and proper care, under pure loss of chance the plaintiff would recover damages equal to the percent of the chance lost (forty percent) multiplied by the total amount of damages ordinarily allowed in a wrongful death action

Front 10

Traditional

Back 10

- A plaintiff in a jurisdiction adhering to the traditional approach must prove that a physician's negligence "probably" caused the patient's injury.

- Plaintiffs showing a greater than fifty percent chance of survival have a better chance to succeed under this approach because in this situation there is not as much question as to whether the disease or the physician's negligence injured the patient.

- Because this approach adheres to traditional standards of causation, a plaintiff who can only show a less-than-even chance of survival (less than fifty percent) will be completely barred from recovery.

- For this reason the traditional approach is known as the "all or nothing" approach.

Front 11

Relaxed causation

Back 11

- A plaintiff's showing of negligence and a substantial or increased risk of harm permits the question to go to the jury with a less than normal threshold level of proof. - Specifically, the plaintiff can take a negligence claim to the jury by merely showing that the physician increased the risk of harm to the patient, instead of showing that the physician was the cause in fact of the patient's injury. - At this point, the jury is permitted to determine whether medical malpractice was a substantial factor in causing the harm the patient suffered.

- Under the "relaxed causation" approach, damages are calculated on the basis of the full amount of damages generally awarded in a wrongful death action, and the court or jury is generally given unfettered discretion to determine the appropriate damages.

- These damages are based on those losses caused directly by the patient's premature death, such as lost earnings and additional medical expenses.

- Because this method for calculating damages involves no mathematical calculations, and it permits the jury to use its own judgment, there is the possibility of overcompensation.

Front 12

EXAMPLE: Three cancer patients each have a 33% chance of survival iftreated properly. The D negligently treats each one and all three die. In eachcase, the damages would have been $100,000 if the negligence is treated as thecause of the harm.

Back 12

Traditionalrule: recovery ($0), total liability (0$) Relaxedcausation: recovery ($100,000), total liability ($300,000) Lostchance: recovery ($33,333.33 each), total liability ($100,000)