Proving Medical Causation

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who said that she just discovered that a tumor for which she recently had surgery, appeared on a CT scan that she had several years ago. Though the tumor is clearly visible on the scan, she was never told that she had a tumor when that CT scan was done five years ago. She said that if she had known she had a tumor five years ago she would’ve immediately had surgery. She goes on to say she would’ve avoided having the pain and symptoms she’d been going to doctors about over the last five years. She wanted to know her legal rights.

Let’s assume for the sake of this discussion that the CT scan was incorrectly read and that the 5-year-old CT scan did show a small tumor. Let’s also assume that if the patient knew five years ago that she had a tumor she would have hired a surgeon to remove it five years ago.

Does that mean that the caller has a good case?

We should also assume that since the mistake five years ago was recently uncovered that the statute of limitations of two years would be deemed tolled by a court and that the Court would permit the patient to sue even though two years expired from the date of the medical mistake.

Thus, the issue we are discussing is can the patient win in court simply on her own word that she would’ve had surgery right away five years ago had she known about the tumor. Will a court permit her to stand up and say, “I want five years for the pain suffered while other doctors struggled to diagnose the cause of her pain in the area of the body where the tumor was located?”

How a judge might rule is going to depend on other facts that come to light.

The reason I say that is because the defendant who made the medical mistake, is going to argue that the patient has to have medical proof that their symptoms for the last five years are in hindsight entirely due to the presence of the small but growing tumor that, aside from the fact that it did show up in a CT scan, was so small that it really did not cause significant pain until shortly before her doctors uncovered it and removed it.

How do courts normally rule on this kind of question? In other words, is a court going to say that you can as the patient just simply get up in court and say that you would’ve immediately had surgery five years ago, and take your word alone on that issue? Or, will the court say that you have to have medical testimony to support your assertion and back up your statements?

A court very well may say that medical testimony is required because a medical doctor is the only qualified person to causally connect the pain and symptoms occurring over the past five years to the existence of the tumor. But if so, will a medical doctor be unwilling to make that connection? In fact, the patient had gone to several physicians making complaints over the past five years, but those complaints did not lead to a diagnosis of a tumor. In fact, they were vague complaints that might’ve been associated with a lot of medical issues, even allergies.

Is there a bright line to describe when a court would decide you do need medical testimony, or the court migh