By Damian D. Capozzola, Esq., and Jamie Terrence, RN
News
On Feb. 28, 2025, a California appellate court ordered the trial court below to vacate its ruling denying a plaintiff’s request for a special jury instruction. The trial court had denied the plaintiff’s request for a jury instruction shifting the burden of proof on causation to the defendant in the plaintiff’s medical malpractice action because of the absence of evidence that the plaintiff would otherwise need to prove the case. However, the appellate court felt that was unfair to the plaintiff and disapproved.
The case originally was filed after the plaintiff retained defendants to perform heart surgery on her, which took place on Feb. 19, 2021. Following the surgery, the plaintiff experienced a stroke, and she contended that her damages would have been significantly less severe had the doctor ordered a computed tomography (CT) scan because it would have indicated that she was a candidate for a thrombectomy. However, the plaintiff was no longer a candidate for a thrombectomy when a CT was finally taken because her stroke had advanced too far. As a result, she filed a complaint alleging two causes of action: medical negligence and loss of consortium.
At the trial court level, the plaintiff asked the court for a special jury instruction shifting the burden of proof on causation to the defendant, which was denied. The Court of Appeal later issued an order directing the superior court to vacate its ruling denying the plaintiff’s request for a special jury instruction because the facts of the case made it likely that the doctor’s failure to order a CT scan resulted in an absence of critical evidence, and that omission potentially could justify shifting the burden of proof on causation to the defendant.
Background
The case arose from the events that followed the plaintiff’s heart surgery in 2021. Immediately following her surgery, her primary surgeon was informed that the plaintiff’s symptoms were suggestive of a stroke, and he asked another doctor to visit her the next morning. The plaintiff claimed the second doctor committed malpractice when he was treating her in the hospital — he observed signs of potential stroke and failed to call a “code stroke.” As a result, a CT scan was not taken of her brain until several hours later, and the patient presently is severely disabled as a result of her stroke.
Prior to trial, the plaintiff filed a written motion requesting a special jury instruction that would shift the burden of proof on causation to the second doctor. The instruction effectively stated that, if the plaintiff can present evidence that the doctor was negligent in failing to order a CT scan, that there was a reasonable possibility that a CT scan followed by a thrombectomy would have mitigated her damages, and that a CT scan was critical to establish causation, then public policy would require that the burden shift to the defendant to show that his negligence did not cause her damages.
According to the plaintiff’s expert deposition testimony, there was a high degree of medical certainty that, if she had been given a CT scan that morning, and that if the image had shown she was a candidate for a thrombectomy, she would have obtained a better outcome in terms of long-term damage. Furthermore, the second doctor’s own expert took the position during a deposition that, because there was no imaging done that morning when the second doctor examined her, there was no way to know whether, at that time, she was a candidate for a thrombectomy at all. The plaintiff was no longer a candidate for a thrombectomy when a CT scan finally was ordered.
Because the trial court requested the burden-shifting instruction before trial and before the trial court heard any evidence, the Court of Appeal found that the factual record was insufficiently developed to make that determination. As a result, it ordered the trial court to vacate its ruling denying the requested jury instruction.
What This Means for You
As a matter of best medical practice, it is now a standard of care for healthcare professionals at every level of practice to call an emergency code if a patient exhibits any sign of a cerebral vascular accident regardless of cause. Rapid response by staff trained to interpret diagnostic data allows immediate intervention, including chemical thrombolysis, if the injury is the result of an embolism. If the stroke is hemorrhagic, this intervention cannot be used. The CT scan can be used to help make this determination but the window of time in which the embolus can be reduced or removed before cellular damage occurs is a matter of a very few hours. It no longer is acceptable to wait, and a physician’s order is not required to call or respond to a code called for a patient actively experiencing a possible stroke.
The appellate court’s reasoning that medical providers generally should not be permitted to benefit from an omission (when the absence of critical evidence of causation likely is a direct result of that omission) is important for several reasons.
First, if courts increasingly embrace this burden shift, it likely would lead to a significant increase in early medical malpractice settlements. The plaintiffs’ bar is going to be incentivized to allege that a large spectrum of tests should have been ordered to prevent injury and easily claim that the failure to order those tests was the proximate cause of that injury. After a complaint is filed with facts that allege a doctor decided to forgo one or several tests, it is likely that a court would find that the results of these tests would have been relevant to proof of causation, making the possibility of an eventual burden shift at trial a probable concern. In these cases, defendants would need to weigh the value of a reasonable, early settlement against the very real risk of working up a case that ultimately is impossible to win because, in light of the doctor’s omission, the extent to which the plaintiff would have been in a better position (absent the omission) is unknowable.
Additionally, even in cases where defendants feel they have a decent chance of winning despite a burden shift, the likely shift itself will lead to larger legal bills for the defendants. To prove the omission did not cause the plaintiff’s injury or increase its severity, defendants will have to spend more money on experts in anticipation of the imminent uphill battle of meeting their new causation burden.
Furthermore, there is a significant cost to defensive medicine. The ordering of CT scans and other imaging studies that are routinely deemed not to be necessary in daily practice and a deviation from normal care just to safeguard against litigation will lead to costs beyond legal bills. For example, hospitals will need to spend more money to hire extra personnel to perform and then interpret the exams above what arguably would not have been ordered (absent the effect of this case). Finally, the lower the bar to sue and the more likely the chance of a payout when sparing plaintiffs the burden to prove proximate causation naturally will increase the number of malpractice claims filed, raising the cost of insurance for doctors and hospitals that ultimately will be passed on to the patients. Tracking these burden questions with the assistance of experienced litigation counsel is important for medical providers facing medical malpractice claims.
Reference
- California Court of Appeal, Fourth Appellate District, Case No. G064459, March 21, 2025.
Damian D. Capozzola, Esq., The Law Offices of Damian D. Capozzola, Los Angeles
Jamie Terrence, RN, President and Founder, Healthcare Risk Services, Former Director of Risk Management Services (2004-2013), California Hospital Medical Center, Los Angeles
On Feb. 28, 2025, a California appellate court ordered the trial court below to vacate its ruling denying a plaintiff’s request for a special jury instruction. The trial court had denied the plaintiff’s request for a jury instruction shifting the burden of proof on causation to the defendant in the plaintiff’s medical malpractice action because of the absence of evidence that the plaintiff would otherwise need to prove the case. However, the appellate court felt that was unfair to the plaintiff and disapproved.
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