#1755 - Staunch - Medical Law

Staunch –

Causation Generally

• There is never “one thing” which causes an event – we need to find a complete causal set

  • As Hart and Honore suggest: it is a particular puzzling or unusual occurrence, or divergence from the standard state or performance of something wiTH whose ordinary states or modes of functioning we are familiar;

    • and when we look for the cause of this we are looking for something, usually earlier in time, which is abnormal or an interference in the sense that it is not present when things are as usual

• So when there is a fire, several things are needed

  • Fuel

  • Oxygen

  • A lack of sprinklets

  • Some sort of ignition

• After extensive enquiries we discover that the fire started in a room where, a short while before, somebody had carelessly thrown a lighted cigarette into a wastepaper basket.

  • In putting this forward as the fire's cause, we simply ignore the many background conditions, eg the presence of paper in the basket, the lack of a sprinkler system, the presence, for that matter, of oxygen in the air, also necessary and, together with the cigarette, sufficient, for the result.

    • Since the latter are normal features of the situation, mentioning them has no point: it does not explain why on this occasion the fire occurred

But for test

• As Hart and Honore note, it is the need to explain why something happened that is the key motivation behind the type of forensic enquiry engaged in by the lawyer.

  • The latter's task is to attribute responsibility for harmful outcomes ex post facto. In this regard, the familiar 'but for' test is usually applied in order to decide whether our candidate condition, the discarded cigarette,

    • was truly the cause of the fire. This test is so-called because it poses the following hypothetical question: 'but for the discarded cigarette (that is, supposing it had not been discarded) would the damage have occurred?'

      • If the answer is 'no', then the presence of the cigarette was decisive: it made the difference.

      • If the answer is 'yes', it did not.

        • In this manner the test tells us if the candidate condition was a necessary condition for the fire.

        • But there is no suggestion that it was a sufficient condition.

          • As already noted, it was only sufficient taken together with the various background conditions, paper in the basket, oxygen in the air, etc., whose presence in the set was also necessary for the fire to follow

Problems with the but for test

• Suppose that at the very moment the cigarette was thrown into the bulding, a short circuit also occurred

  • If we asked to identify the cause of damage to the building and attempted to apply the but for test, we would have difficulties

    • It cannot be said of either fire that “but for” its presence, no damage would have occurred

    • In the but for test we have to assume that we have a neutral causal backdrop, rather than one charged in such a way that the same outcome is independently in motion anyway.

      • The test is premised on the presence, at any one time, of no more than single causal set sufficient for a given outcome.

• NESS test gets round this

  • We can call something a cause where it is shown to be a necessary element in just one of several co-present causal sets

    • Each independently sufficient for the effect

    • Thus, in the above example, unlike the but for test which designates neither the fire nor the short circuit the cause

      • The NESS test allows us to regard both the cigarette and the short circuit as causative of the damage.

  • Also, look at pre-emptive causes

    • This is where, by coming first in time, on causal set trumps another potential set lurking in the background

      • The latter set is frustrated for a necessary condition for the sufficiency of any set of actual antecedent conditions

        • is that the injury would not have occurred already as a result of other actual conditions outside the test.

    • Suppose B shoots C dead as he is about to take a sip from a cup poisoned by A

      • The but for test would exculpate both

      • The NESS test makes it clear that B’s act it the cause of P’s death

        • A’s act, does not satisfy the NESS test:

          • Poison is not in the list of necessary elements of any operative set of conditions sufficient for P’s death

            • Instead it is a necessary part of a potential, but as things turn out, inoperative, causal set.

The NESS test and McGhee

• NESS alone cannot help McGhee, but it can provide the most useful analytical framework for examining the various possible causal permutations in that case

  • Such an analysis yields the following possibilities with regard to the causal status of the guilty brickdust:

    • (1) it may have been the cause on the injury

      • This is so if (together with background conditions – heat, sweat, light etc.)

        • (a)it would have been sufficient for the injury even in the absence of the innocent dust

        • AND (b)the innocent dust was not similarly sufficient – here there is only a single causal set comprising the guilty set and various conditions – the innocent dust does not feature in any similar set.

    • (2) it may have been a cause of the injury

      • This is if

        • (a)it would have been sufficient for the injury

        • AND (b) the innocent dust was not similarly and independently sufficient

        • And (c) the operation of the innocent dust did not pre-empt but rather duplicated its effect on the plaintiff

      • Here there are two overlapping causal sets – the first comprises the guilty dust plus background conditions

        • The second the innocent dust together with the same background conditions.

    • (3) It may have been a contributory cause of C’s injury.

      • This will be so if

        • (a) it would not alone have been sufficient for the injury

        • AND (b) the innocent dust would have been similarly insufficient

        • AND (c) together they were sufficient as part of the same causal set.

    • (4) The guilty dust was no cause of the injury

      • (a) the innocent dust was sufficient for the injury and the guilty dust was not similarly sufficient

      • OR (b) both sources of dust were sufficient, but the innocent dust pre-empted the operation of the set with the guilty dust.

• What do we think of when we say “risk”?

  • What we mean is a potential member of a causal set which is lurking in the background

    • An icy stretch or road creates a risk of a motoring accident

      • An icy road is not sufficient in itself for an accident – there must also be care not being driven with extreme care

        • We often express this in terms of statistics

The Medical Negligence Context

• This allows leads to complex cases

  • Two candidate conditions will always be automatically present

    • The patient’s disease – a deravation from the standard physical condition of human beings

    • And the doctor’s breach of duty

  • The form of multiple causation at issue will vary according to the nature of the breach of duty

    • The more complex form arises where the latter is made up of a positive act (e.g. administering the wrong drug to a patient)

      • Here, since the original illness may be sufficient alone to harm the patient, an analysis in terms of co-present causal sets is required

        • Sometimes it will be easy to disentangle the two sets by showing one pre-empted the other

          • E.g. immediate death after taking wrong drugs would pre-empt natural death a few hours later from illness.

      • But on other occasions it will be more difficult

• In Wilsher

  • Here the over saturation of oxygen owing to D’s breach of duty might have been the caused or contributed to the baby’s blindness

    • But there were four or five other natural conditions all of which had affected the baby which could have had equally the same effect.

    • Wilsher may have been an example that the more potential candidate conditions which could have been (1) the cause, (2) a cause, (3) a contributory cause or (4) simply a risk which did not materialise

      • (which could have been said of any of the other candidate conditions)

        • Then the more limited D’s control over them and the less willing the court will be to infer that the condition contributed by D’s breach was causative of the injury.

• However, we’re normally focused on an omission to treat

  • The latter may claim he was deprived of the opportunity to aboid harm

    • For in so far as the illness is treatable, it is not causally sufficient, only necessary for the harm

      • A further candidate condition of a negative nature must be present to complete the causal set – namely failure by the doctor to treat

    • To resist this claim, the doctor will argue that the patient’s condition was untreatable ab initio

      • i..e it was sufficient alone (together with background conditions) for the injury suffered.

  • In cases where there is clearly loads of evidence, such as Barnett we can easily say that the illness alone was sufficient to complete the causal set

    • And that the failure to treat was not necessary to complete the set

    • Often, however, matters will not be so clear cut

      • In Hotson, either

        • C’s fall was untreatable ab initio (it completed the causal set by itself)

        • Or it was treatable, in which case none treatment figured as a member of the same set

      • But there was genuine uncertainty as to which of these alternatives had actually materialised

The statistics of chance

• The causal laws we refer to which particular assertions of cause and effect are justified are typically in incomplete form

  • Given both the state of our knowledge and the nature of our motivation, we are rarely able or willing to specify every member of the antecedent causal set upon which a given reslt follows

    • We make do with generalisations which contain a few of these elements –...