For a physician to be liable, jury must always find factual cause

It’s well-established case law in Pennsylvania that if a jury doesn’t first factually find that a physician or hospital’s negligence caused a patient harm, then they cannot subsequently be found liable to have increased the risk of any harm befalling that patient.

A case before the Pennsylvania Superior Court threatens that standard and physicians tell the court that it’s imperative that that standard remain. If it doesn’t, the bar to hold physicians and others liable for negligence is wrongly lowered, the Litigation Center of the American Medical Association and State Medical Societies and the Pennsylvania Medical Society tell the commonwealth’s highest court in an amicus brief in the case, Hagans v. Hospital of the University of Pennsylvania, et al.

The brief asks the Pennsylvania Superior Court to order that a new trial be held.

“Allowing liability to attach without a clear finding of causation is manifestly unjust. … A finding of increased risk, alone, is not sufficient to establish liability, but the verdict slip in this case … erroneously allowed for that possibility,” the brief tells the court. “It must be made clear to lower courts and litigants alike that factual cause and increased risk are not an ‘either/or’ proposition. A jury must always find factual cause, even when a plaintiff is permitted to proceed on an increased risk theory, and it must do so without ambiguity.”

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.

The state’s highest court is considering the appeal of a favorable ruling for the plaintiff in a medical professional negligence case filed after a woman and her son, who was born with profound developmental impairments, received obstetrics care at Hospital of the University of Pennsylvania.

At the end of the jury trial, the judge verbally instructed the jury that there needed to be a factual cause of negligence, not solely an increased risk of harm. But the verdict slip the jury was given was “contrary to Pennsylvania law,” says the physician organizations’ amicus brief. The plaintiff’s counsel in the case proposed a verdict slip—which was allowed despite the Hospital of the University of Pennsylvania objections—that asked:

• Was the Defendant’s negligence a factual cause of any harm to the minor-Plaintiff, and/or did the Defendant’s negligence increase the risk of harm to the minor-Plaintiff?

The jury answered that question “yes.”

Physicians tell the court that putting the words “and/or” in the verdict slip allowed the jury to find for the plaintiff even if jurors believed that the hospital’s conduct only increased the risk of harm. It didn’t lay out properly that factual cause also needed to be present.

“Specifically, the ‘and/or’ conjunction allowed the jury to find either factual cause or increased risk of harm or both and offered no mechanism through which to determine from a ‘yes’ response which of these options the jury chose,” the brief says, adding that “it is entirely possible under these circumstances that the jury’s ‘yes’ answer pertained only to increased risk of harm and not to factual cause, which … is not legally sufficient to establish liability.”

A 1978 Pennsylvania Supreme Court ruling established that after a plaintiff introduces evidence that a defendant’s negligent act or omission increased the risk of harm and that the harm to the plaintiff indeed occurred, the jury then has to answer whether or not that increased risk was a substantial factor in producing the harm.

“Hence, a medical negligence plaintiff cannot recover merely by proving that defendant’s negligence increased the risk of harm and that the harm in fact occurred. Rather, as dozens of appellate cases have consistently and uniformly stated ... the plaintiff must prove and the jury must find causation,” says the brief from the AMA Litigation Center and Pennsylvania Medical Society.

That’s essential because the plaintiff’s harm could have stemmed from an independent source and occurred no matter what a physician did. For example, a person could have died of a heart attack no matter what treatment was provided.

“Health care providers are not guarantors of favorable outcomes,” the brief says. “Eliminating the requirement for a plaintiff to prove causation makes medical providers virtual guarantors of the care provided. This is a fundamental shift in the law and substantial expansion of liability which, if allowed to stand, would impose financial and other burdens on health care providers that would inevitably have a detrimental impact on the delivery of health care in the commonwealth.”