Walsh, Bridie; Walsh, Adrian --- "Causation and medical negligence: Puzzles of breach, moral responsibility and moral luck" [2023] PrecedentAULA 14; (2023) 175 Precedent 4

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CAUSATION AND MEDICAL NEGLIGENCE

PUZZLES OF BREACH, MORAL RESPONSIBILITY AND MORAL LUCK

By Bridie Walsh and Adrian Walsh

In this article we reflect on the place of consequences in determining causal responsibility and in assigning liability. We do so by considering two puzzling scenarios, exemplified in case law, where legal understandings of causal responsibility do not capture what we might take to be the moral sense of liability.

Under Australian law of torts, medical practitioners owe a duty of care to patients that encompasses all aspects of their role, including diagnosis, treatment and advice. To bring a claim in liability, the patient must establish that the duty of care was owed and the harm sustained was caused by that breach. In other words, the plaintiff must satisfy three main elements:

1. breach;

2. causation; and

3. damage.^[1]

However, causation has been the subject of significant case law and legislation. In Victoria, for example, the legislation governing causation (s51 of the Wrongs Act 1958)^[2] is as follows:

‘(1) A determination that negligence caused particular harm comprises the following elements –

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).’

As such, courts are required to distinguish the scientific ‘factual causation’ issue from the subjective ‘scope of liability’ issue when determining cases.

Curiously, there are instances where, absent a negligent act, a particular outcome would not have occurred but the damage does not arise directly from the negligence. There are also cases where a person acts negligently and yet where (by good luck) no harm occurs. In both scenarios no liability is assigned. However, the non-liability raises some interesting philosophical and normative questions. To what extent do current legal arrangements regarding negligence fit with our ordinary common-sense conceptions of liability and moral responsibility? How coherent are the current legal arrangements as a body of work?

We consider two such puzzles below. The first involves cases where a person’s action leads directly to damage, but the chain of causation from breach to outcome is broken and thus there is no claim in liability, for example, Wallace v Kam (Wallace).^[3] The second puzzle involves cases where no bad outcome occurs from a breach and yet there is unconscionable recklessness that ordinarily might be thought to warrant censure, for example, Paul v Cooke (Cooke).^[4] In each scenario, one leaves oneself open to what contemporary philosophers call ‘moral luck’, good bad or otherwise.

Our aim herein is not so much to agitate for any particular change to such doctrines, but rather to clarify what is currently the case. We hope that this discussion sheds light on some of the philosophical and normative assumptions that underpin our current laws on negligence.

PUZZLE ONE: A BREAK IN THE CHAIN OF CAUSATION

Puzzle one concerns situations where factual causation is established, but scope of liability is not – that is, but for the negligence the outcome would not have occurred, but causation is nonetheless not established. Consider the 2013 medical negligence case of Wallace.^[5] In this case, Mr Wallace sought assistance from a neurosurgeon in relation to a condition of his lumbar spine. The surgery carried risks of paralysis and neurapraxia.^[6] It was established that, had Mr Wallace been warned of the risk of paralysis, he would not have undergone the surgery; but that, critically, had he known of the possibility of neurapraxia (which he did suffer) he would still have undergone the treatment.^[7]

Ultimately, the position was held that a claim can only succeed if a patient has not been advised of a risk and would not have undergone the particular treatment had they been advised of that risk, and where they did undergo that treatment, the particular risk materialised.^[8] The argument that he would not have had the treatment had he known of the risk of paralysis, which did not materialise (regardless of the fact that knowing would have meant he did not have the surgery and therefore would not have suffered neuropraxia), therefore did not satisfy the normative limb of the test.^[9] Importantly here, the risk that materialised was a risk that the plaintiff was prepared to accept.

As such, factual causation was proven, but the scope of liability remained unproven due to novus actus interveniens (the intervening action) and the High Court held that the plaintiff was ‘not to be compensated for the occurrence of a physical injury the risk of which he was prepared to accept’.^[10]

One significant feature of this case is the puzzle it presents for our understanding of the role of causation in negligence cases, given that the damaging outcome did not arise directly from the negligence; however, had the negligent act not occurred, the outcome would not have occurred. To see how this sits with our ordinary moral intuitions, compare it to a hypothetical case in which Driver X, who is unlicensed, decides to drive. Driver X is aware, when he decides to drive, that he is unlicensed. The case thereby satisfies the first limb of the test: he is breaching his duty of care to other road users. While driving, Driver X runs across an icy road and skids, hitting another driver in the process (Driver Y). Does Driver Y have a right to bring a claim for damages against Driver X?

On one view, Driver X has breached a duty of care and by driving placed themselves in a position to be able to cause an injury (that is, if Driver X were not negligent they would not be on the road in the first place). Therefore, this would likely satisfy the factual causation limb. On another view, Driver X’s failure to be licensed did not cause the accident: it was caused by the icy road. As there is no normative causal link between the negligence (the fact that they are unlicensed) and the outcome (injuring Driver Y), we hold that most likely Driver Y’s case at common law would fail based on a failure to satisfy the normative limb of the test.

The point about the need for a causal connection between negligence and damage is also expounded by Lord Hoffmann in the House of Lords case, South Australia Asset Management Corp v York Montague Ltd:^[11]

‘A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.’

Here it is not the account of causation that is odd – at least from a philosophical point of view – but rather that the normative conclusions that are drawn are curious.^[12]

The puzzle – at least with respect to the moral intuitions that many of us have – is that negligence that is not directly causally efficacious in the manifestation of damage is not morally relevant, even though the damage would not have occurred if the negligent action had not been performed. Intuitively we might regard the negligent agent as responsible in this case.

Before turning to our second puzzle, it should be noted that there is a category of gross negligence for cases where actions are so egregiously negligent that there is a demand for liability, even if the negligence is not the direct cause of some harmful outcome. However, claims of gross negligence are rare and thus the moral conundrums regarding causation remain relevant in the majority of all common law claims.

PUZZLE TWO: MATERIALISATION OF AN INHERENT RISK REGARDLESS OF NEGLIGENCE

The second puzzle – exemplified in the case of Cooke^[13] – concerns cases where there are clearly negligent actions, but in which nothing troubling arises from that negligence itself. This can be differentiated from the first puzzle, where the negligence goes unchecked because what has occurred is only a consequence of the negligence, as compared to directly related to the negligence itself.

In 2003, Dr Cooke, a radiologist, failed to diagnose a berry aneurysm in the cerebral artery of Ms Paul.^[14] In 2006, the berry aneurysm was diagnosed and surgery subsequently undertaken, during which time the plaintiff’s aneurysm ruptured and she suffered permanent disablement.^[15] It was established that rupture of a berry aneurysm during surgery is an inherent risk of the procedure.^[16] She sued Dr Cooke for damages, alleging that the negligence of 2003 (the failure to diagnose the injury) was the cause of her injuries in 2006.^[17]

The NSW Court of Appeal ultimately upheld the decision that the rupturing of the aneurysm was an inherent risk that pre-dated the surgery and was ‘neither created nor increased’ by the negligent failure to diagnose the aneurysm.^[18] The Court stated: ‘the only thing that would have been avoided had Dr Cooke exercised reasonable care and skill was the three year period from 2003 to 2006 which, it is now known beyond any doubt, did not result in any harm to Ms Paul.’^[19]

Herein lies the puzzle. In this case, Dr Cooke has acted negligently by failing to diagnose the aneurysm in 2003 but was held not responsible for the outcome since the rupture of the aneurysm was an inherent risk that was not increased nor decreased by the delay in diagnosis of three years.

Let us now contrast Cooke with a hypothetical case of Qooke. In this imaginary case, all of the details are the same as in Cooke, except that the aneurysm burst between 2003 and 2006. In this instance, would Dr Qooke be liable to pay damages to the plaintiff? The answer is likely yes (acknowledging a possible argument about causation here given that the surgery brings about a risk in and of itself). But this raises questions. Simply because the aneurysm did burst prior to being diagnosed and/or surgery, is Dr Qooke really more negligent than Dr Cooke? Was the fact that the berry aneurysm did not burst pre-surgery in Cooke’s case, and did burst pre-surgery in the case of Dr Qooke, a sign of extra competency or control on the part of Dr Cooke? Medical negligence law would appear to be constituted so as to hold Dr Qooke liable, but not Dr Cooke.

This puzzle sits oddly with certain ‘folk’ moral intuitions many of us have about liability. As the legal philosopher HLA Hart notes: ‘Why should the accidental fact that an intended harmful outcome has not occurred be a ground for punishing less a criminal who may be equally dangerous and equally wicked?’^[20] While we do not wish to suggest doctors are dangerous or wicked by any means (nor that their outcomes are ‘intended’ per se), the question of the punishment only arises where the moral unluck of the doctor means that an injury has arisen from the actions in circumstances where another doctor might not suffer the same fate from the same action. Clearly, it is the consequences – and only the consequences – that count here.

It is worth saying a little more at this point about the philosophical underpinnings of the idea that it is the actual consequences that count. Medical negligence law – at least in the examples discussed – is clearly consequentialist in spirit or, to be more precise, it is act consequentialist at heart (being inherently linked to the outcome of compensation for the plaintiff). Act consequentialism in moral philosophy is the doctrine that right action is the one that brings about the best consequences. Actions are right insofar as they bring about good consequences and, conversely, actions are wrong or bad insofar as they bring about bad consequences. Consequentialism is usually contrasted with the deontological tradition in which actions are assessed in terms of the rightness or wrongness of the act, in and of itself, rather than in term of the consequences.

Furthermore, in the consequentialist model, moral responsibility flows from the consequences for which we are directly causally responsible. We are held morally responsible and our actions are to be condemned to the extent that our actions are causally responsible for undesirable consequences. One way of teasing this out is in terms of what some philosophers call the control principle (CP):

‘(CP) [W]e are morally assessable only to the extent that what we are assessed for depends on factors under our control.’^[21]

This principle can be extended to cases where we assess different people’s actions.

‘(CP-Corollary) Two people ought not to be morally assessed differently if the only other differences between them are due to factors beyond their control.’^[22]

If we apply this to circumstances in which we compare the relative moral assessment of two people – such as Cooke and the comparative hypothetical case of Qooke – then we see that it seems unfair to judge Dr Qooke more harshly. The puzzle here with the law is why the two scenarios of Cooke and Qooke would be assessed differently, even though the level of negligence is exactly the same. A view of the law coloured by deontological traditions would therefore see Dr Cooke as the same as Dr Qooke; and would likely find some sort of punitive response regardless of whether the aneurysm burst or not prior to the surgery. But the law only acts once an injury has arisen to compensate the injured party.

Drs Cooke and Qooke have acted identically and, yet, Dr Qooke’s actions are condemned and Dr Cooke’s are not. Dr Qooke would seem to be a victim of what some philosophers call ‘moral luck’. This is a term used to describe circumstances in which an agent is assigned either praise or blame for actions over which it is not entirely clear they have full control. The term was developed by the philosopher Bernard Williams, who tells the story of Paul Gauguin, who left his wife to pursue his dreams of being a painter in the South Pacific.^[23] Williams suggests that how we assess Gauguin’s abandonment depends on his success in his artistic endeavours.^[24] If it had turned out that Gauguin was a bad painter, then his actions would have been condemned but as he was successful we look far more favourably upon his act of abandonment.^[25] Likewise Drs Cooke and Qooke are equally negligent but only one is regarded as morally liable.

A significant question that this second puzzle case raises concerns the extent to which medical liability should be a matter of moral luck. Philosophers and moral theorists are split on this question. Deontologists – especially those influenced by the German philosopher Immanuel Kant – see the idea of moral luck as being at odds with morality. By way of example, let us return to the car crash analogy. Imagine two drivers, both of whom run a red light. Driver X crashes and kills another driver, while Driver Y does not hit any other cars. Is it simply a matter of moral luck or should we assess both drivers as acting reprehensibly? Both will be charged if caught and presumably Driver X will face much higher penalties. But should we regard Driver Y as also not criminally culpable? According to the deontologist, the fact that Driver Y does not kill anyone does not diminish the level of responsibility nor the assessment of Driver Y’s actions.

CONCLUDING REMARKS

One interesting, related area of inquiry that has garnered a great deal of attention involves comparisons between the conception of causation in the law and causation as it is understood in the philosophy of science.^[26] Our interest is somewhat different and concerns the relationship between, on the one hand, negligence in the law and, on the other hand, our attitudes towards negligence and moral responsibility in ordinary moral reasoning.

It must be admitted that there is considerable variability in ‘folk’ morality: some of us are consequentialist and some of us are deontologically oriented, holding that actions are right or wrong regardless of their consequences. Accordingly, some of us would judge negligible actions solely in terms of their outcomes and others would be drawn naturally towards treating all negligent acts as equivalent regardless of consequences. What is striking, we suggest, about the discussion above is how consequentialist the selected decisions appear to be and the extent to which they admit the existence of moral luck. In this they seem at odds with a great deal of ordinary moral reasoning, a fact that is, at least, worthy of acknowledgment and consideration, if not providing warrant for any substantive changes to our laws on medical negligence.

Perhaps this is, in the end, a necessary feature of compensation law, which is inherently focused on outcomes, and perhaps it will always be at odds with any deontological intuitions we might have.

Bridie Walsh is Associate Lawyer in Medical Negligence at Slater and Gordon Lawyers, Melbourne. EMAIL [e-mail].

Adrian Walsh is Professor of Philosophy in the School of Humanities, Arts and Social Sciences, at the University of New England. Adrian is, amongst other things, the father of five children of whom Bridie is the eldest. EMAIL [e-mail].

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^[1] See s51, Wrongs Act 1958 (Vic); s45(1), Civil Law (Wrongs) Act 2002 (ACT); s5D(1), Civil Liability Act 2002 (NSW); s11(1), Civil Liability Act 2003 (Qld); s34(1), Civil Liability Act 1936 (SA); s13(1), Civil Liability Act 2002 (Tas); s5C(1), Civil Liability Act 2002 (WA).

^[2] See also: s45(1), Civil Law (Wrongs) Act 2002 (ACT); s5D(1), Civil Liability Act 2002 (NSW); s11(1), Civil Liability Act 2003 (Qld); s34(1), Civil Liability Act 1936 (SA); s13(1), Civil Liability Act 2002 (Tas); s5C(1), Civil Liability Act 2002 (WA).

^[3] [2013] HCA 19 (Wallace).

^[4] [2013] NSWCA 311 (Cooke).

^[5] Wallace, above note 3, [1].

^[6] Ibid.

^[7] Ibid, [3].

^[8] Ibid.

^[9] Ibid.

^[10] [2013] HCA 19, [39].

^[11] [1996] UKHL 10; [1997] AC 191 (HL), 213.

^[12] At the present time the three leading philosophical theories of causation are regularity theories, probabilistic theories and counterfactual theories.

^[13] Cooke, above note 3, [5].

^[14] Ibid, [2].

^[15] Ibid, [1].

^[16] Ibid, [3].

^[17] Ibid.

^[18] Ibid, [77].

^[19] Ibid, [116].

^[20] DK Nelkin citing HLA Hart, ‘Moral Luck’, in EN Zalta (ed), Stanford Encyclopedia of Philosophy (Summer 2021 Edition), 1968, 129 <https://plato.stanford.edu/archives/sum2021/entries/moral-luck/>.

^[21] Ibid.

^[22] Ibid.

^[23] B Williams, 1981, Moral Luck: Philosophical Papers 1973–1980, Cambridge University Press, Cambridge, 1981, 22.

^[24] Ibid.

^[25] Ibid.

^[26] M Moore, ‘Causation in the law’ Stanford Encyclopedia of Philosophy (2019) <https://plato.stanford.edu/entries/causation-law/>.