The case against “but for”

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A simple twist of language in jury questions asked in medical malpractice cases can completely alter the outcome of a suit. Duncan Embury believes that what seems like a harmless change in nomenclature can torpedo a well-constructed suit.

Embury, the lead medical malpractice lawyer at Neinstein Personal Injury Lawyers, explained that historically juries in malpractice suits were asked if the plaintiff had proven, on a balance of probabilities, that the defendant acted in breach of the standard of care and, in doing so, contributed to the injury suffered by the patient. However, since a landmark decision by the Supreme Court in Snell v Farrell in 1990, courts have struggled to nail down what the test for causation should look like. A link has to be proven that the defendant’s breach contributed to the loss, but it’s been long-established that the defendant’s breach need not be the only cause of the loss. Where once courts asked a straightforward question around the breach contributing to the injury, now courts have rearticulated their question in what’s called a “but for test.”

“That means plaintiffs have to prove that ‘but for’ the defendant’s breach, the loss would not have occurred,” Embury says, “But in the phraseology of that you run the risk that someone will think that the breach has to be the only cause.”

Embury argued a case in 2015 with seven different defendants. The judge, after hearing a long argument, elected to ask a “but for” question of the jury. Though the jury found that five of the seven defendants breached the standard of care they answered no to the question of causation for each defendant.

This is the area that Embury believes needs to change. He cites some key Court of Appeal decisions on the issue of the legal principle of causation, outside of medical malpractice. Notably, in the Ontario Court of Appeal review of Donleavy v. Ultramar, around an oil spill, clarified the initial trial saying that as long as the plaintiffs can establish that the defendants’ breach of the standard contributed in a not insubstantial way to the harm, then the defendant is liable.

“And so when you put that together that kind of legal premise together with the jury question issue, it seems, at least in my mind, abundantly clear that the question that needs to be asked of the jury is: ‘did this breach contribute in some not insubstantial way to the loss,’” Embury said. “If it did, the plaintiff is entitled to recover. We know that's the law, because a Court of Appeal tells us it is, so then why would we not just ask the jury the very question that we need to prove?”

Embury used this argument before a trial court in December of 2019 and the trial judge agreed with him, asking the jury a question with “caused or contributed to” language rather than “but for.” The jury answered yes to that question and Embury was successful. The contrast, in his mind, with his 2015 case was the language of the jury question.

The language of jury questions in medical malpractice cases hasn’t been standardized though.

“It really is difficult to predict what any given judge is going to do until you're there,” Embury says. “The remedy, I suppose is eventually it's going to come back to the Court of Appeal and somebody is going to say, ‘you need Court of Appeal to clarify this issue once and for all and direct trial judges on what the question needs to be because we have to have uniformity.’”