Uncertain Causation in Medical Liability

by Lara Khoury

Overview

'Proving' the cause of the plaintiff's injury in personal injury litigation often entails significant challenges, particularly when science cannot identify the cause of a biological phenomenon or when the nature of this cause is debatable. This problem is frequently encountered in medical malpractice cases, where the limitations of scientific knowledge are still extensive. Yet judges must decide cases, however uncertain the evidence with regard to proof of causation. Reluctant to leave patients without compensation, courts have in some cases challenged their traditional approach to causation through recourse to such techniques as reliance on factual presumptions and inferences, the concept of loss of chance, and reversal of the burden of proof. This book analyses and criticises the use of these various techniques by the courts of England, Australia, Canada, France, and the civilian Canadian province of Quebec in confronting evidentiary causal difficulties caused by the uncertainties of medical science.

Product Details

ISBN-13:	9781841135175
Publisher:	Bloomsbury Academic
Publication date:	07/17/2006
Edition description:	UK ed.
Pages:	256
Product dimensions:	6.14(w) x 9.21(h) x 0.75(d)

About the Author

Lara Khoury, LL.B (Sherb.) B.C.L. (Oxon.), D.Phil (Oxon.), Barrister and Solicitor, is an Associate Professor and Assistant Dean (Research) at McGill University, Canada.

Table of Contents

Introduction
Section 1-A Society of Risks and Uncertainty
Section 2-Uncertainty in Medical Malpractice
Section 3-Jurisdictions, Fields of Law, and Methodology
Section 4-Structure
Chapter 1: Problems in the Proof of Causation
Section 1-Proof of Causation
Section 2-Evidence in the Four Jurisdictions
Section 3-The Impact of Scientific Uncertainties on the Proof of Causation
Chapter 2: Flexibility .
Section 1-Importance and Mutability of the Traditional Standards .
Section 2-Flexibility and Independence of the Judiciary .
Section 3-Flexibility in Light of Expert Controversies
Chapter 3: Reversal of the Burden of Proving Causation .
Section 1-Common Law . . .
Section 2-Civil Law . .
Section 3-Critical Analysis .
Chapter 4: Probabilistic Assessment of Damages .
Section 1-Loss of Chance
Section 2-Market-share Liability .
Section 3-Critical Analysis (Loss of Chance)
Chapter 5: Inferences of Causation
Section 1-Inferences and Factual Presumptions . .
Section 2-The Development of Justifications
Section 3-Critical Analysis
Final Analysis and Conclusion
Section 1-General Review .
Section 2-Review of the Critique of the Solutions
Section 3-The Alternative-Cumulative Causes Distinction . .
Section 4-Flexibility and the Evidential Solution
Section 5-Alternative Solutions?

Editorial Reviews

Khoury's book expertly shows and explains the attempted solutions and their shortcomings with regard to medical liability…” —Jens M. Scherpe, The Law Quarterly Review - volume 123

“This is a magisterial discussion of the complexities surrounding causal issues in medical negligence cases. It provides a detailed analysis of the courts' approach to these issues in England, Australia, Canada, France and Quebec. The scholarship is thorough and detailed. I could not find a single case or relevant article that was not referred to. The writing is clear and engaging. The reasoning is careful and deep. It is easy to see how the book won the Prix Minerve 2004.” —Jonathan Herring, Legal Studies, Vol. 27, No. 4

“...thorough and informative..” —Ken Oliphant, Yearbook of European Tort Law

“This book undertakes a very valuable project in a detailed and thoughtful way…The comparative focus is undoubtedly a strength of the book...it is hard to imagine that anyone would fail to learn something useful from the analysis.” —Jenny Steele, King's Law Jourbanal, Vol 19, Issue 1

“...Lara Khoury's book will provide lawyers with valuable guidance on proof of causation in such cases.” —Harold Luntz, Torts Law Jourbanal

“...Khoury has made an interesting contribution to the never-ending academic dissection of this issue...” —Vaughan Black, Canadian Business Law Jourbanal, Vol 47

From the Publisher