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By Kenneth J. Miller.

In our previous HPS Legal Alert, we discussed that when attorneys bring forth a medical malpractice claim, they need to prove that there was a violation of the Standard of Care. In this alert, we will discuss the second step to successfully proving liability in a medical malpractice claim, which is to establish Causation.

Many articles discuss what negligence is and how to prove it, but Causation is often an overlooked element of a medical malpractice case. For guidance on how to prove Causation, attorneys must look to the Courts. The primary standard for Causation is derived from a decision by the Florida Supreme Court, Gooding vs. University Hosp. Bldg., Inc.. In this decision the Court established that Plaintiffs must show that the injury more likely than not resulted from the Defendant’s negligence. There are many types of records, statements, and reports that can be used to prove this negligence. However, proving Causation almost always requires the use of expert witnesses. That is why so many medical malpractice claims come down to the testimony of experts.

The Challenges with Causation

In a single Defendant medical malpractice case, that can often be accomplished with simply needing one physician expert to provide their opinions on both Standard of Care violations and Causation. However, this burden of proof becomes a much more complex endeavor when there are multiple Defendants, such as in hospital based claims, where it is alleged that non-physician staff (ex. nurses, physician assistants, or nurse practitioners) violated the Standard of Care. Because while non-physicians can be Standard of Care experts, they cannot be Causation experts. Now an attorney needs to double the amount of experts they need for their case.

The practical challenges in multiparty cases often come to light once the scheduling of depositions begin. What if the retained Causation expert needs to give a deposition before the Standard of Care expert? Then the expert will be forced to assume there is a Standard of Care violation which creates cross examination points. Or what if at trial the expert’s schedules do not match the order of proof that the attorney wants to establish? Then the attorney runs the risk of the jury not being able to easily follow a linear “cause and effect” timeline of events. This often leads to issues like having to video record your expert to present their testimony, rather than having them appear live in the courtroom. Not ideal!

Key Takeaways

Medical malpractice is one of the most complex types of litigation, especially in the State of Florida. Causation can be one of the most difficult and challenging things to prove in a medical malpractice case. The attorneys and medical professionals of Haliczer Pettis & Schwamm understand what it takes to help our clients successfully obtain justice. If you have a potential medical malpractice case and are interested in learning more about your options, contact Ken Miller, or any member of our legal team to discuss.