In a recent medical malpractice case Doull v. Foster, the SJC made a landmark decision. It changes the standard used to determine negligence in Massachusetts.
For the past three decades, the test to determine causation was the “substantial contributing factor” test. This means that if an act or a failure to act led to an injury, then it is a substantial factor. The test was helpful in cases where there were more than one defendant. For instance, when multiple physicians all care for a patient injured as a result of that collective care.
The Doull decision throws out the “substantial contributing factor” test for a “but-for” test. Now it must be proven that the injury would not have occurred without the alleged negligent conduct. This may make it difficult for plaintiffs to obtain justice.
Justice David A. Lowy recognizes the burden placed on plaintiffs by this shift in the causation standard. He fears the Court’s decision to throw out the substantial contributing factor standard “does so at the price of fairness.”
Justice Lowy said the “substantial contributing factor test” is better. It focuses the jury’s attention on the conduct of the parties. He’s concerned the new “but-for” test will cause juries to consider what could have happened rather than the facts.
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