(Please note: the names and locations of all parties have been changed to protect the confidentiality of this medical malpractice case and its proceedings.)
The following four blog entries follow-up the previous two entries from July. These entries address the same issues, but do so from the defense side. By comparing the entries readers should get a good perspective as to how the parties present such issues to the court.
The court then proceeded to apply the substantial factor test to medical malpractice actions. Espinosa determined that causation is satisfied when the plaintiff produces evidence that to a reasonable medical probability, the plaintiff would have obtained a better result absent the defendant's negligence. The court then decided the plaintiff's expert had met that burden. Based upon Espinosa reliance on reasonable medical probability to establish causation in a medical malpractice case, it seem perfectly reasonable, if not necessary, to advise our jury of the specific requirement for medical causation.
Further, Espinosa cites Jones v. Ortho Pharmaceutical Corp. to establish that mere possibility [of causation] alone is insufficient to establish a prima facie case. Id. at 1316, citing Jones, (1985) 163 Cal.App.3d 396. The Espinosa court relied on Jones for the proposition that a possible cause only becomes a probable cause when, in the absence of other reasonable causal explanations, it becomes more likely than no that the injury was a result of a defendant's action. Espinosa, Cal.App.4th 1304, 1316. However, Espinosa distinguished Jones only as to the extent that the Jones court proceeded to apply the 50% factor rule , which is not applicable in general medical malpractice cases. Id. at 1319. As the so-called 50% factor rule is completely irrelevant to the Special Instruction #1 being requested in this matter, the Espinosa court's distinction of Jones is clearly inconsequential, and plaintiffs' mention of it is made purely to distract the court from the issue of a proper jury instruction on medical causation.