Evidential Damage: Liability for Uncertainty in Medical Malpractice Suits

By Alex Stein

As I wrote in my book with Ariel Porat, Tort Liability Under Uncertainty, our torts system must develop systematic remedy for wrongful inflictions of evidentiary harm.

The Florida Supreme Court’s recent decision, Saunders v. Dickens, — So.3d —- (Fla. 2014), is a case in point.

Plaintiffs in a medical malpractice suit have adduced solid evidence showing that a patient’s neurologist failed to timely diagnose and treat the patient’s cervical cord compression—a dangerous condition that led to the patient’s quadriplegia and death. In response, the neurologist introduced a deposition given by the patient’s neurosurgeon. The neurosurgeon stated in that deposition that he would not have changed his treatment of the patient even if he knew that the patient’s cervical cord was compressed. The neurosurgeon explained that he would not have operated on the patient’s neck because the patient “had not yet experienced problems with his upper extremities.” This deposition was given when the neurosurgeon was still a codefendant in the suit. Subsequently, he made a settlement agreement with the plaintiffs and was removed from the suit. The neurosurgeon thus had an obvious motive to give this self-serving deposition even at the risk of perjuring himself.

The jury returned a general verdict in the neurologist’s favor. The plaintiffs’ appeal against this verdict reached the Florida Supreme Court. The Court decided that the jury was improperly instructed about the burden of proof on the causation issue. Specifically, it ruled that a wronged patient need not prove—counterfactually—that she would have received proper treatment had she not been misdiagnosed by the defendant. This ruling relied on Muñoz v. South Miami Hospital, Inc., 764 So.2d 854, 857 (Fla. 3d DCA 2000). In that decision, the Third District reasoned in relation to several negligent providers of prenatal care that had they “conformed to the applicable standard of care, all doubt would be removed as to whether the pediatrician would have acted the same.”

Based on that decision, the Florida Supreme Court issued the following ruling:

We hold that a physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care. To do so would alter the long-established reasonably prudent physician standard where the specific conduct of an individual doctor in a specific circumstance is evaluated. It would place a burden on the plaintiff to somehow prove causation by demonstrating that a subsequent treating physician would not have disregarded the correct diagnosis or testing, contrary to his or her testimony and irrespective of the standard of care for the defendant physician. To require the plaintiff to establish a negative inappropriately adds a burden of proof that simply is not required under the negligence law of this State.

This ruling comes very close to expressly recognizing the “evidential damage” doctrine, recommended by Ariel Porat and myself. By correctly diagnosing the patient’s condition, the neurologist would have given the patient an opportunity to receive proper neurosurgical treatment (timely neck surgery). The patient proved that the neurologist negligently denied him this opportunity. Whether this opportunity would have resulted in the patient’s recovery is uncertain. Things, however, would have been certain had the neurologist diagnosed the patient correctly. The neurologist’s negligence thus did not merely diminish the patient’s chances of cure, but also incapacitated him evidentially. Under my and Porat’s taxonomy, the neurologist caused the patient “evidential damage” and he should assume liability for that damage.

The court therefore should fix the patient’s evidential incapacitation by shifting the burden of proof to the neurologist. The neurologist must be obligated to adduce evidence that convincingly disassociates him from the patient’s quadriplegia and death. If he fails to adduce such evidence, the court should hold him responsible for the patient’s wrongful death, as decided by the Florida Supreme Court.

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