Torts, Medical Malpractice, Shift of Burden of Proof, Malpractice Prevents Evidence of Causation, 1, 3
Plaintiff had a stroke. Defendant doctor didn’t diagnose it properly or call for an immediate “code stroke” and CT scan which would have revealed the extent of the stroke and led to a swifter operation and less severe brain damage. But since there was no CT scan, there was no way for plaintiff to show how damaged she would have been even if the scan and operation had been performed promptly and how much harm she suffered due to defendant’s malpractice. In these circumstances, the opinion holds, the defendant must bear the burden of proof on the causation issue. If plaintiff can present evidence (1) defendant was negligent in failing to order a CT scan, (2) there is a reasonable possibility that a CT scan followed by a thrombectomy would have mitigated her damages, and (3) that a CT scan was critical to establish causation, then public policy requires that the burden shift to defendant to show that his negligence did not cause her damages. Where the absence of critical evidence of causation is a direct result of a tortfeasor’s negligence, the tortfeasor cannot be permitted to benefit from that negligence.