Doull v. Foster
Slip Opinion (2021)
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Rule of Law:
The traditional but-for standard is the appropriate test for factual causation in most negligence cases, including those involving multiple alleged causes of harm. The 'substantial contributing factor' test is discontinued for general use but may be supplemented by a specific instruction in the rare instance of multiple sufficient causes.
Facts:
- Between 2008 and 2011, Laura Doull was a patient of nurse practitioner Anna C. Foster and her supervisor, Dr. Richard J. Miller.
- In August 2008, Foster prescribed Doull a topical progesterone cream for perimenopause symptoms.
- Foster did not discuss the possibility that the cream could cause blood clots with Doull, as she did not consider this a risk.
- During the spring of 2011, Doull visited Foster on three occasions complaining of shortness of breath.
- Foster diagnosed Doull's shortness of breath as a symptom of her pre-existing asthma and allergies.
- In May 2011, Doull suffered a 'seizure-like event' and was hospitalized, where she was diagnosed with a pulmonary embolism and chronic thromboembolic pulmonary hypertension (CTEPH).
- A lung scan revealed that the blood clots in Doull's lungs were chronic.
- In 2015, Doull died at age forty-three from complications arising from CTEPH after an unsuccessful surgery and other treatments failed.
Procedural Posture:
- The Doull family (plaintiffs) commenced a civil action in the Superior Court Department against Anna Foster and Dr. Richard Miller (defendants) for negligence, failure to obtain informed consent, and loss of consortium.
- Following Laura Doull's death, the plaintiffs amended the complaint to include a wrongful death claim.
- The trial judge denied the plaintiffs' pretrial motion to amend the complaint to add the manufacturer of the progesterone cream as a defendant.
- At trial, the jury returned a verdict for the defendants.
- In response to special questions, the jury found that Foster was negligent in failing to diagnose Doull's condition and Miller was negligent in his supervision, but that neither defendant's negligence was a cause of Doull's harm or death.
- The plaintiffs filed a motion for a new trial, which the trial judge denied.
- The plaintiffs appealed the denial of their motion for a new trial to the Appeals Court.
- The Supreme Judicial Court transferred the case from the Appeals Court on its own initiative.
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Issue:
In a negligence case with multiple alleged causes of harm, is the appropriate standard for factual causation the traditional 'but-for' test, or is the court required to instruct the jury on a 'substantial contributing factor' test?
Opinions:
Majority - Kafker, J.
Yes, the 'but-for' test is the appropriate standard. A but-for standard for factual causation is the proper test in most negligence cases, even where multiple potential causes of harm are alleged. The court reasoned that the 'substantial contributing factor' test, which originated as an exception for rare cases of multiple sufficient causes (like two fires merging), has proven confusing and has been improperly applied to general multiple-cause scenarios. The 'substantial factor' terminology conflates factual and legal causation and can either impose too high a standard ('substantial') or invite juries to skip the necessary causal inquiry. The court clarified that there can be multiple but-for causes of a single harm and adopted the approach of the Restatement (Third) of Torts, discontinuing the substantial factor test for most cases and establishing a specific, supplementary instruction for the rare instance of multiple sufficient causes.
Concurring - Lowy, J.
Yes, but the court should not have abandoned the substantial contributing factor test. While the but-for instruction was harmless in this specific case, the wholesale abandonment of the substantial contributing factor test for multiple-cause cases is a mistake. The concurring opinion argues that this standard has a long and successful history in Massachusetts jurisprudence and is more intuitive for juries than the counterfactual 'what-if' reasoning required by the but-for test. The concurrence suggests the change is driven by academic trends rather than a demonstrated problem in state law and contends that the majority's new framework, with its various tests and exceptions, is more complex than the standard it replaces.
Analysis:
This decision represents a significant clarification and shift in Massachusetts tort law, aligning the Commonwealth with the modern approach of the Restatement (Third) of Torts regarding causation. By discontinuing the 'substantial contributing factor' test for most negligence cases, the court rejects decades of its own precedent and simplifies the causation inquiry to the more traditional 'but-for' standard. This change will streamline jury instructions but also require trial judges to carefully distinguish the truly rare 'multiple sufficient cause' cases that necessitate a new, special instruction. The ruling may impact future litigation by establishing a clearer, potentially stricter standard for proving factual causation, which could be perceived as more favorable to defendants in complex, multiple-cause cases.
