9.6 Proof of Causation

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

9.6 PROOF OF CAUSATION

9.601 In General. Recovery of damages requires evidence that the breach of the standard of care was a proximate cause of the claimed injury. ⁴¹ "Reasonable certainty" or "probability" is the standard for proving that a wrongful act was the cause of injury. ⁴² Generally, expert testimony will be required to establish the defendant's wrongful act to a reasonable degree of medical probability. ⁴³ A causation question may be worded: "Do you have an opinion to a reasonable degree of medical certainty, what the probable cause of the [injury, condition] was?" To make a lengthy presentation more crisp, counsel should ask the expert at the outset if he or she understands that the standard of admissibility is a reasonable degree of medical probability or medical certainty and whether the expert agrees that all opinions he or she offers will be opinions he or she holds to that degree. This phrase can then be dropped as the examination proceeds.

9.602 Other Possible Causes. The defense will suggest that other events may have been the cause of the subject injury. The plaintiff, however, is not required to exclude all other possible causes. ⁴⁴ The defendant's efforts to suggest other possible causes can be blunted by requiring the defendant to prove to a reasonable degree of medical probability that the alternative cause was the proximate cause of the injury. A defense expert should be precluded from giving testimony simply to raise the specter of other possible...