A recent appeals court case highlighted a fundamental concept known as proximate cause. Proximate cause is when the negligence of the defendant is a substantial factor in the injury. The case is one which stems from the medical malpractice of a doctor. The Plaintiff alleged various negligent acts by the doctor, however the appeals court determined that they were not a substantial factor. Here is the appropriate language.
” In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries’” (Bianco v Sherwin, 165 AD3d 620, 621-622, quoting Stukas v Streiter, 83 AD3d 18, 23). “Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant’s departure was a substantial factor in causing the plaintiff’s injury” (Gaspard v Aronoff, 153 AD3d 795, 796). ” A plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased [the] injury’” (Lopes v Lenox Hill Hosp., 172 AD3d 699, 702, quoting Gaspard v Aronoff, 153 AD3d at 796-797).
Here, it is uncontested on appeal that Shen departed from good and accepted medical [*3]practice in failing to apprise Berger of the patch she placed during the functional endoscopic sinus surgery and in her postoperative care. However, there was no valid line of reasoning or permissible inferences which could possibly lead rational persons to the conclusion that such departures were a substantial factor in causing Berger’s injuries. Although the plaintiffs’ expert opined that Shen should have advised Berger of the patch and provided written instructions for bed rest following the surgery to avoid dislocating the patch during the healing process, no evidence was presented at trial that the patch was disturbed after the surgery.
The lesson here is that one must connect the negligence to the injury.