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The Substantial Factor Test

Obviously, the old But For Rule that was discussed earlier was unfair, so about 75 years ago, a legal theory called the Substantial Factor Test was introduced. This says you do not have to rule out other possible

causes of your injury. If you can show the doctor’s conduct was the probable cause of what happened, or was a substantial factor in contributing to the bad result, you have a case.

The Rule Is: If the doctor’s actions made a good result less likely, or a bad result more likely, he is responsible for the final results, especially if you can show that, if it had not been for the doctor’s negligence, the chances of a different outcome were better than 50%. The Substantial Factor Theory is also referred to as the Loss-of-Chance Theory, because it holds that anyone who deprived you of the chance of a cure or a happy life is liable. You do not have to rule out other possible causes of your bad results, as long as you can show there was a chance of a better result, and that chance was destroyed by someone’s malpractice. If the doctor’s actions made a bad result more likely, or a good result less likely, you have a valid complaint.

You can see that the Substantial Factor Theory or Loss-of-Chance Theory evens the odds and keeps the doctor honest. If he wants to claim that your infant’s cerebral palsy was due to a virus, and not to a birth injury, he has to produce evidence to prove that it was a virus; you do not have to prove that it was not a virus. The doctor cannot give you the impossible job of trying to “prove a negative.”

This prevents the doctor from raising a smoke screen of conjectures about other possible causes of your injuries. In a North Carolina case, the court said, “When a defendant’s negligence has effectively terminated a person’s chance for survival, it does not lie in the mouth of the defendant to raise conjecture as to the chances he put beyond the possibility of realization. If there was any substantial possibility of survival, and the defendant destroyed it, he is answerable.” No matter what some people may say, our system of justice is based upon the notion of fair play.

You do not have to prove your medical malpractice case 100%, or beyond a reasonable doubt, as in a criminal case. You do not have to rule out the possibility that the doctor’s conduct was not the cause. All you have to do is produce evidence from which the average juror may conclude that you were probably the victim of medical malpractice or dental malpractice.

Instead of you having to show that the doctor was entirely responsible, he has to show that he had no part in causing the bad result. He cannot hide behind conjecture and has to come forward with evidence to show that he was not even partly responsible. As a New York court put it, “One who has negligently forwarded a diseased condition and thereby hastened and prematurely caused death, cannot escape responsibility, even though the disease would probably have resulted in death at a later time. The probability of death from existing causes, for which the defendant was not responsible, would be important in fixing damages – but not a defense.”

How about the hypothetical cases listed in our previous post? The widow of the heart attack victim can certainly sue on the grounds that her husband’s chances of survival would have been much better, if he had been in the cardiac care unit (CCU) of the hospital. Failure to give him proper care reduced his chances of survival. The patient, who developed a wound infection and meningitis, can say that the infection of a clean wound was due to a break in good sterile technique. There was not any infection before the doctors cut on him, so someone must have contaminated the wound during or after surgery. If

everything had been done right and according to the book, no germs would have gotten into the wound, and there would not have been an infection.

Postoperative infection of a clean wound is a question defense lawyers do not have any answer for. They cite all kinds of medical articles, like the booklet we talked about earlier that says a certain percentage of wounds become infected. But, none of them can explain how it happens without someone breaking sterile technique and contaminating the wound. Over 100 years ago, Louis Pasteur, the great French bacteriologist, proved that germs can only be produced by other germs, and infection cannot occur in a sterile space without outside contamination. Yet, we still hear defense lawyers stating theories about how wound infections just happen without any contamination at all.

The parents of a brain damaged baby can make a claim because good and careful doctors take care not to injure the baby’s head, and it was more likely than not that the injury was due to improper delivery technique, or to the baby having been dropped. Other conditions may have played a role. No one can say for certain. But, the head injury was certainly a substantial, if not the only cause, in producing the brain damage.

There is no doubt that early diagnosis and surgery of the breast cancer would have greatly improved the patient’s chances for survival. Failure to do adequate testing, such as mammography, and to remove the cancer while it was still small and curable was a substantial factor in the final outcome and greatly reduced her chances of a cure.

A New Jersey gynecologist treated a lump in a patient’s breast for two years but failed to do any of the routine tests that would have diagnosed her cancer. She subsequently went to another doctor who removed the breast. When she sued, the gynecologist said that she had not suffered any damages. The tumor had apparently been completely removed by the other doctor; there were no signs of recurrence, and she would have had to have the surgery anyway. He maintained that, even if he had diagnosed it two years earlier, she would have had the same surgery and gotten the same result. Do you agree with that defense?

The case was appealed to the New Jersey Supreme Court, which said the gynecologist was guilty of malpractice and had to pay damages, because his negligence had decreased the chances of a successful cure, and his patient had suffered emotionally from the fear that her cancer might have spread and become incurable. The important thing is she did not have to show that the cancer actually had become inoperable or had spread or returned. Just the increased chance of a bad result, and her emotional suffering entitled her to an award.

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