5.50E PRE-EXISTING CONDITION — INCREASED RISK/LOSS OF CHANCE — PROXIMATE CAUSE
If you determine that the defendant was negligent, then you must also decide what is the chance that: (1) the plaintiff would not be dying of cancer; or (2) the plaintiff’s husband would not have died of the heart attack et cetera, if the defendant had not been negligent. Thus, if you decide that the defendant was negligent, then you must decide to what extent were the plaintiff’s injuries caused by the preexisting medical condition and to what extent were the injuries caused by the defendant’s negligence.
When the plaintiff came to the defendant, he/she had a preexisting condition which by itself had a risk of causing the plaintiff the harm he/she ultimately experienced in this case. However, the plaintiff claims that the defendant’s negligence increased that risk of harm and contributed to the ultimate injury. To establish that the defendant’s negligence was a cause of his/her injuries or damages, the plaintiff must first prove that the defendant’s negligence increased the risk of harm posed by plaintiff’s preexisting condition.
Second, the plaintiff must prove that the increased risk was a substantial factor in producing the ultimate harm or injury. If the negligent act was only remotely or insignificantly related to the ultimate harm or injury, then the negligent act does not constitute a substantial factor. However, the defendant’s negligence need not be the only cause, or even a primary cause, of an injury for the negligence to be a substantial factor in producing the ultimate harm or injury. Whether the increased risk was a substantial factor is to be reflected in the apportionment of damages between the increased risk and the preexisting condition. If under all of the circumstances here you find that the plaintiff may have suffered lesser injuries if the defendant was not negligent, then the defendant is liable for the plaintiff’s increased injuries. On the other hand, if you find that the plaintiff would have suffered the same injuries even if the defendant was not negligent, then the defendant is not liable to the plaintiff.
If you determine that the defendant was negligent in not having a diagnostic test performed, in this case, but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, the plaintiff does not have to prove that the test would have resulted in avoiding the harm. In such cases the plaintiff must merely demonstrate that the failure to give the test increased the risk of harm from the preexistent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases.
If you find that the plaintiff has proven that the defendant was negligent, the plaintiff is not required to quantify or put a percentage on the extent to which the defendant’s negligence added to all of the plaintiff’s final injuries. In cases where the defendant’s negligence accelerated or worsened the plaintiff’s preexisting condition, the defendant is responsible for all of the plaintiff’s injuries unless the defendant is able to reasonably apportion the damages. If the defendant claims that all or part of the plaintiff’s injuries would have occurred anyway, then the defendant, and not the plaintiff, has the burden of proving what percentage of the plaintiff’s injuries would have occurred even if the defendant had not been negligent. If the injuries can be so apportioned, then the defendant is responsible only for the amount of ultimate harm caused by the negligence.
For example, if the defendant claims that: (1) the plaintiff would still have suffered the spread of her cancer even if the diagnosis had been made in January 2001; or (2) that the plaintiff’s husband still would have died of a heart attack even if treated earlier, and if the defendant can prove that an apportionment can be reasonably made, separating those injuries the plaintiff would have suffered anyway, even with timely treatment, from those injuries the plaintiff suffered due to the delay in treatment, then the defendant is only liable for that portion/percentage of the injuries the defendant proves is related to the delay in treatment of the plaintiff’s original condition. On the other hand, if you find that the defendant has not met the defendant’s burden of proving that plaintiff’s injuries can be reasonably apportioned, then the defendant is responsible for all of the plaintiff’s harm or injury.
When you are determining the amount of damages to be awarded to the plaintiff, you should award damages for all of the plaintiff’s injuries. Your award should not be reduced by your allocation of harm. The adjustment in damages, which may be required, will be performed by the court.
