Medical Malpractice — Causation Instructions
Posted in Medical Malpractice on September 24, 2015
Uriell v. Regents of University of California (4th Dist., January 29, 2015) 234 Cal.App.4th 735, 184 Cal.Rptr.3d 79, 15 Cal. Daily Op. Serv. 1788, 2015 Daily Journal D.A.R. 2028
The family of a woman who died as a result of breast cancer filed an action for medical malpractice against Regents of the University of California. The plaintiffs alleged that the decedent’s physicians at the UC San Diego Medical Center had failed to timely diagnose her cancer in 2007, resulting in her death in 2010, but that had she been timely diagnosed she would have survived ten more years.
Following a jury verdict in favor of the plaintiffs the defendant appealed, contending that the trial court had failed to properly instruct the jury on the issue of causation when it gave the standard jury instructions on substantial factor (CACI 430) and multiple causes (431), without a special instruction the defendant had requested, stating: “Causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.”
The court of appeal affirmed, rejecting the defendant’s argument that the standard instructions confused the jury or diluted the standard for causation in a medical malpractice case:
[Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 209 Cal.Rptr. 456 and Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498–1499, 7 Cal.Rptr.2d 608] do not require a heightened standard for causation in medical malpractice cases as the Regents suggest. Rather, these cases address the factual burden a plaintiff is required to meet to establish a prima facia case. If a plaintiff cannot present evidence the defendant’s conduct more likely than not was a substantial factor (a cause in fact) of plaintiff’s alleged injury, then the issue of causation should not go to the jury and the defendant is entitled to judgment. . . .
In this case, as we have discussed, Dr. Brouillard testified to a reasonable degree of medical probability Kastan would have survived 10 additional years if her cancer had been timely diagnosed and treated in 2007. As the trial court correctly determined, this testimony is distinguishable from Dumas v. Cooney, supra, 235 Cal.App.3d at pp. 1597–1598, 1605–1606, 1 Cal.Rptr.2d 584, which it was alleged the patient was denied only a possibility (a 30 percent chance) of survival by the delayed diagnosis. Here, Dr. Brouillard’s testimony established to a probability (greater than 50 percent) of a better result, Kastan’s survival for more than 10 years, if she were timely diagnosed in 2007.  This was sufficient to meet the plaintiffs’ prima facie burden on causation and the jury was required to consider and weigh the evidence, including the credibility of the expert witnesses. The jury decided it was more likely true than not true that the Regents’ failure to diagnose Kastan’s breast cancer in 2007 was a substantial factor in causing Kastan’s untimely death. (CACI Nos. 200, 430.) We find no error.
The Regents conflate the legal concepts of substantial factor for causation and concurrent cause. CACI No. 431 is necessary to explain to the jury a “plaintiff need not prove that the defendant’s negligence was the sole cause of plaintiff’s injury in order to recover. Rather it is sufficient that defendant’s negligence is a legal cause of injury, even though it operated in combination with other causes, whether tortious or nontortious.”  Failure to give an instruction on concurrent and multiple causes, where appropriate, is reversible error. …
[H]ere, the Uriells established through Dr. Brouillard’s testimony the Regents’ negligence was a substantial factor in causing Kastan to die 10 years earlier than she would have if she had been timely diagnosed and treated. The fact she had cancer, which acted concurrently, as another substantial factor in causing her death, did not relieve the Regents of liability. CACI No. 431 properly explained this issue of concurrent substantial causes to the jury.