The major question asked while addressing medical malpractice case involving multiple potential tortfeasors or potential causes of injury is whether the court should adopt a “factual cause” of harm standard, as provided in sections 26 and 27 of the Restatement (Third) of Torts (2005).

In Doull v. Foster, SJC-12921 (Feb 26, 2021), plaintiffs filed the suit against the medical caretakers and claimed negligence for failure to obtain informed consent and loss of consortium after their family member died from complications arising from chronic thromboembolic pulmonary hypertension. However, the jury gave the verdict in favor of defendants because the jury was instructed using traditional but-for causation principles.

The Massachusetts Supreme Judicial Court (SJC), was asked once again to clarify the case law on causation together with a series of other issues that are more willingly decided while addressing medical malpractice case. Specifically, the court examined the use of two competing causation standards: the traditional but-for causation standard and the alternative substantial contributing factor standard. The SJC stated that the substantial factor test for causation which had been in frequent use in employing the Commonwealth for decades, was “unnecessarily confusing.” In view of this, the SJC meritoriously declared to end the substantial factor test in all negligence cases going forward, except in toxic tort litigation.

Further, the SJC openly questioned its usefulness in toxic tort litigation and all but welcomed a direct challenge to its use there. The court also stated that, going forward the proper causation standards should be practiced. The SJC went on to explain that there could be many but for causes of a harm and, where applicable, a jury should be so instructed. Relying on the Restatement (Third), the SJC further detailed the appropriate jury instruction for cases involving multiple sufficient causes of plaintiff’s harm.

As per the above ruling, the court made it clear to use the traditional factual causation standard in the medical malpractice cases, including those involving multiple alleged causes, and to discontinue the use of the substantial factor test, which was unnecessarily confusing.

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