Proximate Cause (Medical Malpractice)

An essential element of the plaintiff’s cause of action for negligence, or any other tort for that matter, is some reasonable connection between the act or omission of the defendant and the damage which the plaintiff suffered. This connection usually is dealt with by the courts in terms of what is called “proximate cause” or “legal cause”.

Proximate cause is a technical term that is often misunderstood by almost everyone, including some attorneys. In general, proximate cause refers to causation in fact. Most people believe proximate cause only refers to “but for proximate cause”. But for the fact you turned off the oxygen, the patient would not have died. This is a cause and effect way of saying your action of turning off the oxygen caused the death. Unfortunately, there is a second more troubling proximate cause concept referred to as the “legal proximate cause”. This type of proximate cause is merely the limitation which the courts or state legislatures have placed upon the actor’s responsibility for the consequences of his/her conduct.

Legal proximate cause is established when the statutory or legal underlying principles are proven. Under this concept, the law establishes when someone may potentially be liable. For example, in failure to diagnose cases, many state statutes require a probability threshold before legal proximate cause is established. If the plaintiff brings a claim for failing to diagnose breast cancer, the following facts must be established by a preponderance of the evidence (more likely than not standard). First, that the defendant owed a duty to the plaintiff. Second, that the defendant breached he duty. Third, that the breach caused the injury (but for cause). Finally, that the plaintiff’s probability to achieve a better result was reduced by more than fifty (50%) percent.

In our example, assume that when the breast cancer was diagnosed, it was stage four and the plaintiff had a probability of a five-year survival of twenty (20%) percent. Further, assume that if the cancer were diagnosed eleven (11) months earlier, the probability of five-year survival would have been eighty (80%) percent. Subtracting the twenty (20%) percent from the eighty (80%) percent leaves a reduction in the probability of survival of sixty (60%) percent. Therefore, the plaintiff established the “legal proximate cause” as a well as the “but for proximate cause” and is able to bring a lawsuit against the healthcare provider. In this example, the plaintiff would argue the medical malpractice caused the probability of survival to be reduced by sixty (60%) percent.

In law, damages cannot be speculative. Therefore, the theory of proximate cause is necessary to link the alleged damages to the actual breach of a legal duty and eliminate any speculation of whether or not the damages were proximately caused by the act or omission.

Winning medical malpractice claims is not always about successfully arguing the case before the jury. In fact, most cases are won because the defense attorney successfully briefed and argued one or more of these legal concepts, like proximate cause, to the judge in advance of trial. The attorneys at Chapman Law Group have argued hundreds of successful legal motions in defense of medical malpractice defendants. If you are being sued for medical malpractice, please contact a member of our legal team for an evaluation of your defenses. One of our experienced team members would be happy to talk with you. Or visit us on the web at For over 25 years, Chapman Law Group has successfully defended hundreds of complicated medical malpractice claims with exceptional results. We understand the complexities of health care and work hard to defend your good name and the right to continue to practice your chosen profession.

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