40 Trial Lawyer • Fall 2023 The Horse’s Tail Continued from p 39 employee, and the hospital permits or encourages that impression, the hospital may be liable for the physician’s actions. It is also possible that a hospital will characterize a doctor as an independent contractor for purposes of liability but exercise enough control over the doctor’s work that for all practical purposes, a court would find that the doctor was an employee. In that case, the hospital could still be liable for the doctor’s medical negligence A hospital’s liability isn’t always based on a doctor’s negligence. A hospital can be sued for its own negligence in allowing the doctor to work there. To cover our bases in Larry’s case, we alleged both vicarious liability for the hospital on an apparent agency basis, as well as raised direct claims of negligence for the hospital for a failure to transfer the patient for surgery to another hospital. Causation The primary defense in nearly all malpractice cases is causation, causation, causation. In malpractice cases it is typically much easier for plaintiff’s counsel to establish standard of care than it is to present medical testimony sufficient to establish that the negligence caused harm to the plaintiff. In Larry’s case, like any CES case, the defense argued that a different course of conduct by the provider would ultimately not have led to a different outcome. The timeline matters in CES. Without causation, there is no case. For example, Larry had symptoms suggestive of CES, received a diagnosis of CES and was prepared for emergency surgery. He waited nearly two and a half days at the hospital before his surgeon performed surgery to take the pressure off his nerves. But did this delay in surgery cause him harm? This may seem like an open-and-shut case of medical malpractice. The neurosurgeons had a duty to treat him according to the standard of care, and the doctor likely breached that duty by not operating within 48 hours. But the defense argued the element of causation was absent — “Yes, perhaps the doctor should have performed the surgery sooner, but we don’t believe the delay actually caused any harm.” We had the burden in Larry’s case of proving that earlier surgery would have produced a better neurological outcome. But the medical literature is divided on how long a patient can go without decompression surgery from the time of onset of symptoms before neurological deficits become permanent. The defense will argue in nearly every CES case that by the time a diagnosis was made, the patient was in cauda equina syndrome complete (CESC) and the damage is already done. In other words, even if the doctor had done everything they should have, the outcome would have been the same. Still more challenging is that there are
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