Proving Liability for Medical Negligence (3) - Causation of Damage

After it has been established that a healthcare professional had breached his duty of care, the next step would be for the Court to inquire whether injury, loss or damage claimed to have been suffered by the patient was because of the breach of his duty of care.

Causation is the linked series of events leading to the adverse clinical result, injury, losses and damage suffered by the patient.

The patient must be able prove the causal link between the defendant’s breach of his duty of care and the adverse outcome suffered by him failing which, a claim in Court may fail.

The ‘But For’ Test

The ‘But For’ test means that if it was not for fault of the defendant, the plaintiff would have not suffered any injury, losses or damage. If, however, the adverse result would have happened just the same, fault or no fault, the defendant will not be found to have been the cause of the plaintiff’s plight (Cork v Kirby Maclean Ltd [1952] 2 All ER 402).

Causation can be more readily established when it is clear or obvious that the injury, losses and damage suffered by the patient were because of the healthcare professional’s actions or omissions.

Novus Actus Interveniens

Novus actus interveniens means an intervening act or event which breaks the chain of causation. A defendant may contend that the adverse clinical result or the loss and damage claimed to have been suffered by the patient was caused by something else altogether that was independent of his breach of his duty of care.

If the chain of causation is broken, the defendant cannot be held liable for the affected injury, loss or damage claimed by the plaintiff.

The Doctrine of Material Contribution

Even if there are multiple causes of the adverse outcome suffered by the patient, the healthcare professional can still be held liable if his actions had materially contributed to the indivisible injury suffered by the patient.

A material contribution is a “non-negligible” and “non-trivial” contribution (Wu Siew Ying t/a Fuh Lin Bud-Grafting Centre v Gunung Tunggal Quarry & Construction Sdn Bhd [2011] 2 MLJ 1).

It can be even a minor cause. A 25% contribution can be a material contribution (Athey v Leonati [1999] Lloyd’s Law Reports Med 458). As long as the defendant is part of the cause of an injury, he can be held liable, even though his act alone was not enough to create the injury.

Not a Scientific Standard of Proof

The standard of proof refers to the degree of evidence required to establish the truth of the matters in dispute. Ordinarily the burden rests on the plaintiff to prove his claim while the defendant, save in certain circumstances, usually does not need to prove his defence or disprove the claim.

The standard for proving causation is not that of scientific precision. The standard is on a “balance of probabilities” which means it was more likely than not, that a particular fact is true, or an event had happened.

The Courts when deciding on causation will not be concerned with a scientific standard but on a balance of probabilities (Page v Smith (No. 2) [1996] 3 All ER 272).

Conclusion

In law and science, sub-standard care by a healthcare professional will not automatically attract any presumption of fault or that it is the operative cause of an adverse clinical result suffered by the patient.

If a connection between the medical accident and the injury, loss or damage suffered by plaintiff patient cannot be established or is severed, the defendant healthcare professional cannot be held responsible for them.

Written by: –

Evan Lee Sian Wen
Advocate & Solicitor (Malaya)
Principal of Evan Lee Advocates & Solicitors

~We do not use nor condone the use of generative artificial intelligence in our materials~