It is not necessary for medical expert witnesses to communicate like lawyers, but it is essential they understand the legal tests and terminology governing standard of care and causation.
To this end, this blog post will identify and explain 12 key legal terms that expert witnesses should know. Medical expert witnesses may wish to consider these explanations to better understand the legal questions posed to them, while lawyers may wish to use them to explain legal terminology to their experts as they may be relevant to their opinion.
(1) BALANCE OF PROBABILITIES
The plaintiff has the onus of proving the elements of the action in civil actions on a balance of probabilities. To satisfy the balance of probabilities standard, the element must be shown to be more likely than not.
This can be contrasted with the standard of proof in criminal prosecutions, which requires establishing the elements of the offence beyond a reasonable doubt.
(2) MORE LIKELY THAN NOT
A fact or finding is considered more likely than not when its probability is at least slightly greater than 50%. For example—the evidence does not need to show the defendant’s conduct was certainly or definitely the cause of the plaintiff’s injury, only that it was probably so.
(3) DUTY OF CARE
A precondition for any medical negligence claim is establishing that a particular defendant had a duty to exercise care in connection with a particular plaintiff. Duty of care is not contentious in most malpractice cases because it arises upon the formation of a doctor-patient relationship.
(4) STANDARD OF CARE
Proving that a defendant breached the applicable standard of care is an essential element of any medical negligence claim. The standard of care applicable to a specific defendant is dependent on the unique facts of the case. Plaintiffs are typically required to produce expert evidence establishing the applicable standard of care and identifying the defendant’s breach.
Every medical practitioner must bring a reasonable degree of skill and care to their task. In other words, they must exercise the degree of skill and care which could be expected of a normal prudent practitioner of the same experience and standing. In the case of a specialist, the degree of skill and care required in matters within their field will be higher than of a general practitioner.
(5) CAUSATION
A medical negligence claim cannot succeed unless the plaintiff establishes their injury or loss was caused, in fact and in law, by the defendant’s breach of the applicable standard of care.
(6) CAUSE IN FACT
The standard test for factual causation requires the plaintiff to show they would not have suffered the injury or loss “but for” the standard of care breach of a defendant. In exceptional circumstances, a medical negligence claim can be successful where they establish that a defendant’s breach materially contributed to the risk of the plaintiff’s injury or loss.
(7) BUT FOR
The “but for” test is the standard test for factual causation. It is a rule of exclusion in that the defendant’s conduct is not considered the cause of an event if the event would have occurred in its absence. The negligent conduct must be an indispensable requirement or precondition for the event.
(8) ROBUST AND PRAGMATIC APPROACH TO CAUSATION
The approach to determining causation in medical malpractice cases has been described by the court as “robust and pragmatic”. This prescribed approach requires that the test for causation not be applied too rigidly. In some circumstances, an inference of causation may be drawn from the evidence without positive scientific proof. This reflects the fact that in medical malpractice cases the facts lie particularly within the knowledge of the defendant.
(9) MULTIPLE CAUSES
The defendant’s conduct does not need to be the sole cause of the plaintiff’s injury. Causation will be established where the negligence is shown to have materially contributed to the injury.
(10) MATERIAL CONTRIBUTION TO INJURY
The defendants conduct will be considered to have materially contributed to the plaintiff’s injury where the negligence was a necessary contributing factor – which is to say that the other factors alone would not have led to the injury.
(11) MATERIAL CONTRIBUTION TO RISK
In exceptional circumstances, a medical negligence claim can be successful where the plaintiff establishes that a defendant’s breach materially contributed to the risk of the plaintiff’s injury or loss.
The availability of this test is limited to cases with multiple defendants where it is impossible for the plaintiff to show which of the defendants in fact caused their injury.
If available, this alternate test requires the plaintiff to show that the defendants conduct materially increased the risk of a particular injury and that injury was in fact sustained. A contributing factor is material if it falls outside the “de minimis range”.
(12) CAUSE IN LAW (PROXIMATE CAUSE)
The question of legal causation considers whether an injury or loss is too unrelated to the wrongful conduct to hold the defendant liable. If the injury or loss claimed would not have been foreseeable by a reasonable person in the position of the defendant, the injury or loss would be considered too remote to be legally caused by the defendant’s conduct.
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