Palsgraf goes viral: Viruses as the proximate cause of an injury
A central question in every tort case is what caused the injury. The question of proximate cause does not end with the inquiry of whether it is possible for a particular product or act to cause an injury, but also whether it actually caused the plaintiff’s specific injury. At times, the plaintiff may well have suffered the same injury even without the addition of the product or act. In many cases, the plaintiff may have multiple medical conditions to be considered when determining if the product or act truly was the “but / for” cause of the injury, or whether the plaintiff’s outcome would have been the same regardless of the product or act. Thus, it is important to evaluate the role that all of a plaintiff’s medical conditions played in the injury.
Due to the recent COVID-19 pandemic, viruses and their complications have been a topic of intense study. Viruses are ubiquitous, and while some people have no symptoms, others may die from viral complications. Even within the same individual, certain viruses may go unnoticed while others cause significant complications. The body’s inflammatory response, provoked by the virus, is one such significant complication. For example, medical literature has linked inflammatory responses triggered by COVID-19 infection to a myriad of health problems, including heart attacks and other heart dysfunction; abnormal clotting, including pulmonary embolisms; acute respiratory distress syndrome; kidney failure; liver damage, and the list goes on. However, COVID-19 is not the only virus that has been linked to significant complications, even after the body has overcome the virus. Thus, the impact of a virus that a plaintiff may have had before or at the time of her injury should not be ignored when considering the question of what actually caused the plaintiff’s injury. Sometimes the presence of viruses may be evident in the plaintiff’s medical records, or there may be clues to the presence of a virus. For example, the plaintiff may have had long term fatigue, skin lesions, or polyps typically related to viruses. Active viral infections can often be identified through tissue or fluid samples. Past infections can be identified through immunoglobulin tests.
If the presence of a virus is identified, it is important to understand all of the literature regarding the known complications of that virus, along with the virus’ interaction with other medical conditions the plaintiff may have. For example, in the recent COVID-19 outbreak, public health officials consistently reported that almost all individuals who had severe clinical courses of COVID-19 (including death) had one or more underlying health condition.
If a company were, for example, defending a suit claiming that their pharmaceutical caused a plaintiff’s kidney failure, it would be important to consider whether the plaintiff had, for example, COVID-19 before or at the time of their kidney failure. It would also be important to know if the plaintiff had any other underlying conditions that put them at greater risk for a severe clinical course. Only once all of the plaintiff’s medical conditions are put into context can it be determined what actually caused the plaintiff’s kidney failure. If the medical evidence shows that even if the plaintiff had never used the pharmaceutical, the plaintiff likely would still have suffered the same kidney failure, then the company may defend the suit on the ground that the pharmaceutical did not change the plaintiff’s outcome. In essence, that the pharmaceutical was not the “but /for” cause, or proximate cause, of the plaintiff’s injury.
Since the Palsgraf v. Long Island Railroad Company decision in 1928, proximate cause has been an element of tort claims in the United States. As science has evolved to reveal the impact of viruses on the body, the evaluation of the potential role of viruses in a plaintiff’s injury is an important element that should be explored with medical experts when defending tort suits.
This post was authored by Christine Lawson, a Partner at Womble Bond Dickinson. You can read more about her background and connect with her here.