Elissa Philip Gentry, ‘Damned Causation’, 51 Arizona State Law Journal 419 (2022). A common but troublesome factual cause problem arises in the following medical malpractice scenario. A doctor negligently treats or fails to diagnose a patient’s medical condition, and the patient dies or suffers serious harm from the condition. The patient (or the patient’s family) can prove that due care might have prevented that harm but cannot prove this causal link by a preponderance of the evidence. In recent years, most courts have responded to this ‘loss of a chance’ of a better medical outcome (LOC) problem not by denying all liability, and not by awarding full damages, but instead by awarding partial damages. Most scholars, and the most recent drafts of two Restatement Third, Torts projects, endorse this response … (more)
[Kenneth W Simons, JOTWELL, 11 March 2024]
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