Standard of Care and Causation

V. Standard of Care and Causation

A. Flowers v. Torrance and Expert Testimony Requirements

The standard of care applicable to a healthcare provider in California is "that level of skill, knowledge, and care in diagnosis and treatment ordinarily possessed and exercised by other reasonably careful and prudent physicians in the same or similar locality and under similar circumstances." In Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, the California Supreme Court clarified that the standard of care in a medical-malpractice action is a single, unitary standard — there is no separate, lower "ordinary care" standard for ministerial or non-clinical acts performed by healthcare professionals. The standard of care is what a reasonably prudent professional would do under like circumstances, and that standard must, except in narrow circumstances, be established through expert testimony.

The narrow exceptions are situations where the alleged negligence is so obvious that a layperson can recognize it without specialized training — the surgical-sponge case, the wrong-leg amputation, the patient who falls from an untended gurney. Outside those narrow circumstances, the absence of qualified expert testimony will defeat the plaintiff's case at summary judgment. Counsel must therefore retain qualified standard-of-care and causation experts at the earliest possible stage and must scrutinize defense expert qualifications under Cal. Evid. Code § 720 and the Sargon line of cases.

B. The Substantial-Factor Causation Test

California applies the "substantial factor" causation test in negligence cases, including medical malpractice. Causation is established where the defendant's conduct was a substantial factor in bringing about the plaintiff's harm. The substantial-factor test is broader than but-for causation in some respects (it accommodates concurrent causes) and narrower in others (a trivial or theoretical contribution is insufficient).

In medical-malpractice cases, the causation inquiry is frequently the most contested element. As discussed above, Bromme v. Pavitt (1992) 5 Cal.App.4th 1487 forecloses the loss-of-chance theory in wrongful-death cases: the plaintiff must show that the negligent act, more likely than not, caused the death. In non-fatal cases, the substantial-factor test permits recovery where the negligence materially worsened the patient's condition, even if some injury would have occurred regardless. Causation must, like standard of care, be established through expert testimony in nearly all cases.

C. Informed Consent Under Cobbs v. Grant

The doctrine of informed consent in California rests on the foundational decision in Cobbs v. Grant (1972) 8 Cal.3d 229. Cobbs established that a physician has a duty to disclose to the patient all information material to a reasonable person's decision whether to undergo the proposed treatment, including the nature of the procedure, the material risks of the procedure, and the available alternatives.

Cobbs adopted a patient-centered (objective) standard for materiality: the question is what a reasonable patient in the plaintiff's position would have considered material, not what other physicians customarily disclose. This stands in contrast to the physician-centered standard adopted in some jurisdictions. Cobbs also requires the plaintiff to establish a causal nexus between the non-disclosure and the injury — that is, that a reasonable patient, properly informed, would have declined the treatment.

Informed-consent claims are theoretically distinct from negligent-treatment claims, but in practice they are frequently pled together. Counsel should be aware that the informed-consent claim may survive even where the underlying treatment was performed within the standard of care, because the gravamen of the informed-consent claim is the lack of authorization, not the quality of the care.

This analysis is for informational purposes only and does not constitute legal advice. Consult qualified counsel for advice specific to your situation. Attorney advertising.