Torts: Conundrums of Causation

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For five years, Bandleader Emery Deutsch and his wife vainly sought damages from Manhattan's Doctors Hospital for the permanent mental retardation of their son. The Deutsches claimed that hospital nurses delayed Christopher's birth by pressing a towel against his head for twelve minutes—thus allowing the tardy doctor to arrive and collect his fee. As a result, the child allegedly suffered loss of oxygen to the brain. He will never be able to walk or talk or learn.

In one of New York's most unusual negligence cases, the Deutsches won three successive jury verdicts. The first jury awarded the couple $187,000, the second $158,000, the third $282,000—and all three verdicts were tossed out by the Appellate Division of the New York State Supreme Court. Anxious to avoid yet another trial, though conceding no fault whatever, Doctors Hospital has just settled out of court for the round sum of $100,000.

In fact, the hospital had a rather strong case. For, like all negligence plaintiffs, the Deutsches had the difficult job of proving four elusive claims: 1) that the defendant owed the plaintiff a duty of reasonable care; 2) that the defendant failed to perform that duty in the manner of "a reasonably prudent person" who would have foreseen and avoided the consequences; 3) that the defendant's negligence actually as well as legally caused the plaintiff's injury; 4) that the plaintiff suffered real loss or "damage" to be compensated by the defendant.

But for Him. What often troubles cases like the Deutsches' is the key question of "causation in fact"—the same issue that complicates cancer suits against tobacco companies. Clearly, the law cannot accept the fact that every event has causes reaching to the ends of time. The law's causation tests ask, for example, whether the event would have occurred "but for" the defendant's conduct: his conduct is not a cause if the event would have occurred anyway. Though a hotel failed to install proper fire escapes, it is not liable for the death of a guest who succumbs to smoke in his bed.

Unlike the requirement in criminal cases, proof that defendant was the "but for" cause need not be beyond a reasonable doubt; a "preponderance" of credible evidence will do, and common-sense assumptions are permissible. Though a child might have drowned anyway, for instance, the absence of a lifeguard is presumed to be significant in the alleged negligence of a swimming-pool owner.

But the plaintiff cannot win on mere possibilities. Nor can he rely on common-sense assumptions in situations where only experts are competent to judge causation. In the Deutsch case, for example, the jury was not permitted to assume that brain damage resulted from the repressed birth, and medical testimony was essential. All this makes the plaintiff's burden of proof exceedingly hard to carry when the effect appears long after the cause—for example, in radiation sickness or in lung cancer allegedly caused by cigarettes. Things get really complex when there may be two or more possibly equal causes. Example: A dies from the simultaneous effects of a shooting by B and a stabbing by C.