DEVOIR D’INFORMATION, CAUSALITÉ ET RESPONSABILITÉ MÉDICALE
Keywords:medical liability, causal connection, duty to inform, compensation, harm, proof, causation, evidence-based medicine, comparative law
Located at the crossroads of scientific and legal logic, the issue of how to establish causal connection is a perennial question in medical liability law. The authors use French law and certain examples of Canadian law to shed light on a number of fundamental issues related to causation. In particular, the effects of a physician’s duty to inform and the theories of “equivalence of conditions” and “adequate causation” point to the emergence of a compensation philosophy that plays out outside the usual methods of proof. Causation bears the imprint of the tension between two objectives: compensating victims and repairing an actual, proven harm, which is all the more difficult to prove in instances of harm that are challenging to evaluate. Moreover, the flexibility associated with proof of causation seems to favour the acceptance, in medical liability law, of new counts of harm, which would otherwise rely on a simple odds ratio (loss of opportunity) in the best-case scenario, or on unverifiable assumptions in all other cases (lack of preparation).