Factual and legal causation – their relation to negligence in nursing

Abstract

Several elements must be shown to be fulfilled for a court to hold that negligence has occurred, and a person is liable. One of these elements is 'causation', the idea that there must be a causal link between the claimant's loss and the negligent behaviour of the defendant. This article considers the application of the tests of factual and legal causation to cases of medical negligence. It is argued that in light of the recent development of a number of exceptional approaches to factual causation, each relating to a particular causal problem, the causal process must be identified in any given case so that the correct test for factual causation can be applied. This is illustrated by reference to MRSA claims. It is further argued that where the negligence consists of misdiagnosis or mistreatment of existing illness the causal problem is unique to medical negligence and demands a unique approach to causation. The 'scope of duty' test for legal causation is illustrated in a medical context and it is argued that where the negligence consists of a failure to warn the patient of the risks involved in treatment, although the harm is clearly within the scope of the doctor's duty, it is wrong to establish liability in the absence of factual causation.