Thomas McCutcheon

In a personal injury or negligence case, it is the plaintiff’s burden to prove by a majority of evidence that the injury complained of was caused by the defendant’s negligent act. Negligence alone does not afford a cause of action. ‘Liability is only imposed when negligence is the proximate cause of the injury and the natural and probable consequence of the negligent act.

There is a long held myth in the legal profession that the burden of proof for causation is greater than establishing the probability of the cause. This problem is compounded by the common legal term “to a reasonable degree of medical certainty,” which confuses the doctor and is misleading as to the proper burden of proof in a civil case. “A reasonable degree of medical certainty” sounds strikingly similar to a defendant’s burden of proof in a criminal case or “beyond a reasonable doubt.” It also negatively implies than that burden of proof in a civil case is absolute scientific certainty or 90%, as opposed to the 50.1 percent probability burden of proof required in a civil case. In Western Ry. Of Ala. V. Brown, the Alabama Supreme Court addressed the confusion and confirmed that the term “to a reasonable degree of medical certainty” is “an expression of an expert opinion that the plaintiff’s condition was probably caused by his/her injury.” Note therefore that the ambiguous term, “a reasonable degree of medical certainty” and the “probability of causation” both mean 50.1 percent or the probable cause of an injury in a civil case.

To establish the probable cause and effect of an injury, the doctor may testify to and base his/her expert opinion on the patient’s statements and the patient’s history of the case.

The doctor must understand that in Alabama an expert is allowed to testify whether certain facts could or would cause a result, but not whether they actually did. The expert does not have to personally witness the act that is alleged to have caused the injury and therefore the expert cannot testify that he or she has personal knowledge that specific act actually caused the injury. The expert can rely on the parties’ facts to establish his/her expert opinion as to causation. The medical expert’s testimony is not used to establish the patient’s version of facts as the absolute truth, but in establishing an opinion, the expert can assume that patient’s version of facts in the patient’s history are true and taken as true, would have probably caused the resulting injury.

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