Understanding Causal Inference in Medical Negligence Actions (8 March 2011)
Professor Russell Brown, Associate Professor, University of Alberta Faculty of Law
Among the reasons why medical negligence cases do not pose the pressing policy concern for the medical profession in Canada that they are said to pose in the United States is that such cases in Canada are floundering on the issue of cause-in-fact and the "but-for" test. Attempts to circumvent the "but-for" test by relying on the "alternative" test for causation derived from Resurfice Corp. v. Hanke have almost invariably failed.
The solution, however, lies not in applying "alternative" tests, but rather in repairing a fundamental misunderstanding in Canadian caselaw and legal commentary of causal inference. While the customary "common sense" account for causal inference will be rejected in favour of a qualitative assessment, the drawing of causal inferences - even in the absence of supportive medical expert opinion - will be defended by way of a theoretical reflection upon evidence and its role in the law's fact-finding process.
