In order to maintain a negligence/tort action in Arizona, an injury victim must establish the four elements of a tort. Those four elements are duty, breach, causation and damages. In other words, the injury victim must prove that the defendant had a duty to the victim, the defendant breached that duty, and the breach of the duty caused damages.
Causation is generally a question of fact for the jury to resolve. Fehribach v. Smith, 200 Ariz. 69, 73, ¶ 16, 22 P.3d 508, 512 (App. 2001). Causation does not have to be established with “absolute certainty so as to exclude every other conclusion.”
Morrison v. Acton, 68 Ariz. 27, 33, 198 P.2d 590, 594 (1948). “To be a proximate cause, Defendant’s conduct may have contributed only slightly to the injury.”
Id. (Emphasis added);
Tellez v. Saban, 188 Ariz. 165, 171, 933 P.2d 1233 (App. 1996);
Ontiveros v. Borak, 136 Ariz. 500-505, 667 P.2d 200 (1983).
The court examines the total evidence regarding causation and determines whether there is a genuine controversy for the jury to decide. “A party may prove proximate causation by presenting facts from which a causal relationship may be inferred, but the party cannot leave causation to the jury’s speculation.” Salica v. Tucson Heart Hospital-Carondelet, 224 Ariz. 414, 419, ¶ 16, 231 P.3d 946, 951 (App. 2010). To demonstrate proximate cause, the plaintiff must show “a natural and continuous sequence of events stemming from the defendant's act or omission . . . that produces an injury, in whole or in part, and without which the injury would not have occurred.”
Barrett v. Harris, 207 Ariz. 374, 378, 86 P.3d 954, 958 (App. 2004) (emphasis added). Liability can also be incurred if the malpractice was a factor that reduced a patient’s chance of survival or, conversely, increased the risk of harm.
Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 607-08, 688 P.2d 605, 615-16 (1984).
If there is “medical evidence of the possibility of the existence of the causal relationship together with other evidence or circumstances indicating such a relationship, the finding that the [negligent conduct] caused the injury will be sustained.” Montague v. Deagle, 11 Ariz. App. 106, 108, 462 P.2d 403, 405 (1969) (citation omitted);
see
also,
Kreisman v. Thomas, 12 Ariz. App. 215, 218, 469 P.2d 107, 110 (1970). Moreover, probability need not be established by any magic words uttered by a witness.
In re M.H. 2007-001236, 220 Ariz. 160, 169-70, 204 P.3d 418, 427-28 (App.2008) (quoting
Saide v. Stanton, 135 Ariz. 76, 78, 659 P.2d 35, 37 (1983)). Rather, “the trier of fact is allowed to determine probability or lack thereof if the evidence, taken as a whole, is sufficient to warrant such a conclusion.”
Id. at 169-70, 204 P.3d at 427-28 (quoting Saide, 135 Ariz. at 78, 659 P.2d at 37).
Ritchie v. Krasner, 211 P3d 172 (2009), also addresses causation as follows:
1.Courts generally leave the issue of proximate cause to the jury. Christy v. Baker, 7 Ariz. App. 354, 358, 439 P.2d 517, 521 (1968). The plaintiff does not need “to introduce evidence to establish that the negligence resulted in the injury or the death, but simply that the negligence increased the risk of injury or death. The step from increased risk to [the probability of] causation is one for the jury to make.
2.A jury may find proximate cause between the defendant’s act and the plaintiff’s injury if the plaintiff’s injury was a foreseeable consequence of the act. See Dan B. Dobbs, The Law of Torts 447-53 (West Group 2000). Foreseeability is not a factor when deciding whether a duty exists.
Gipson II, 214 Ariz. at 144, ¶ 15, 150 P.3d at 231. Determining whether a certain result is foreseeable requires a factual analysis that is best left to the jury. Juries should engage in a foreseeability analysis to help determine the issues of breach and causation.
Id. at ¶ 16. It is essential for both courts and parties not to conflate the legal determination of duty and the factual determinations of standard of care, breach, and causation. If we were to use foreseeability as a factor to help determine the existence of duty, we would risk “obscur[ing] the factors that actually guide courts in recognizing duties for purposes of negligence liability.”
Id. Limiting foreseeability to the factual analysis “recognizes the jury’s role as factfinder and requires courts to articulate clearly the reasons other than foreseeability, that might support duty or no-duty determinations.”
Id. at ¶ 17.