Malpractice, Terminal Patients, and Cause in Fact

By Alex Stein

Any person interested in medical malpractice or torts in general must read the Missouri Supreme Court’s recent decision, Mickels v. Danrad, 486 S.W.3d 327 (Mo. 2016). This decision involved a physician who negligently failed to diagnose the presence of a malignant brain tumor, from which the patient was doomed to die. The patient first saw the physician when he experienced numbness, blurred vision, and headaches. The physician sent the patient to an MRI scan, which he subsequently reviewed but made no diagnosis. Eleven weeks later, the patient arrived at a hospital in an altered mental state and underwent a CT scan of his brain, which showed a malignant and incurable tumor. Four months later, the patient died of that tumor. According to patient’s oncologist – who testified as a witness in a subsequent malpractice trial – the tumor was incurable when the patient first saw the physician. The plaintiffs offered no evidence controverting that testimony.

The physician moved for summary judgment. He claimed that the plaintiffs produced no prima facie evidence that could establish cause in fact. The trial court agreed with the physician, but ultimately the Missouri Supreme Court reversed that decision. The Court ruled 4-3 that the plaintiffs could not establish wrongful death, but they could still successfully sue the physician for malpractice that shortened the patient’s life as representatives of his estate. The Court clarified in connection with this ruling that “This approach keeps the question of the time and date of the decedent’s death out of the causation analysis and confines it to the damages analysis where it belongs.” Id. at 331 (emphasis added).

This decision enabled the plaintiffs to seek jurors’ determination on the available treatments that could have prolonged the patient’s life and use this factor as a basis for their entitlement to compensation.

The dissent, written by Judge Teitelman, disagreed with the Court’s proposition that a terminally ill patient can never suffer a wrongful death. According to Judge Teitelman, the physician in the case at bar may well have caused the patient’s death even when one assumes that the patient was doomed to die of the tumor. Id. at 332.

This opinion is flawed. When the patient first saw the physician, he faced two alternative prospects: (1) dying of the tumor after receiving best available treatment; and (2) dying of the untreated tumor. The physician’s malpractice therefore could only have shortened the patient’s life and certainly did not kill the patient. The Court’s decision was absolutely correct. Moreover, it also properly responded to the need to protect terminal patients against malpractice.

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice,, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.