Determining fault: Doctors vs. pre-existing conditions

Lawsuits arising from medical malpractice represent a distinct area of tort law, and differ somewhat from their more traditional counterparts. They require different standards and post unique challenges for the decision-makers.

In general, the plaintiff in a malpractice case must prove three things:

• The applicable standard of care;
• That the defendant deviated from that standard; and
• That the deviation caused the injury.

Typically, the dispute in the personal injury cases is surrounding factor number three. This can be more difficult in malpractice cases, as they typically involve someone who is already sick. The courts recognize this, and so do not apply the traditional “but for” test, which asks whether the plaintiffs injuries would have happened “but for” the defendant’s negligence. Instead, with medical malpractice cases, the New Jersey Supreme Court has decided that the plaintiff must show that the complained-of negligence caused the victim an “increased risk of harm” and that this increased risk of harm was a “substantial factor in causing the injury ultimately sustained.”

This is easier said than done. The Appellate Division of the New Jersey courts, in Flood v. Aluri-Vallabhaneni, described the situation like so: “No issue in the field of medical malpractice litigation has spawned as much discussion and debate as the proper method by which a jury should assess whether a doctor’s negligence proximately caused injury to a patient who suffers an ultimate consequence attributable to that negligence alone, or in some combination with a pre-existing medical condition.”

One phrase that shows up over and over again in the courts’ decisions is “substantial factor.” As the Supreme Court said in Verdicchio v. Ricca, “[c]onduct is a substantial factor if it would lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense.” That being said, in most cases it is unlikely that the plaintiff will be able to show what would have happened without the defendant’s negligence. Courts only require that the defendant’s negligence be a cause of the injury; it does not have to be the only cause or even the primary one. Once this is done, the defendant has the option of proving apportionment: meaning that the jury will need to decide a percentage of harm for which the defendant is actually liable. In the case of preexisting conditions, the defendant must show the likelihood that the injuries would have happened anyway; this is the percentage that they will be considered to be at fault (which can affect how much the plaintiff recovers).

Even with the different standards in malpractice cases, proving any harm can be difficult. If you have been injured as a result of improper or inadequate medical treatment, you should consult an experienced lawyer as soon as possible to ensure the best result.