California recently enacted Evidence Code section 801.1 which holds all testifying doctors to the same standard for the basis of their opinions as to cause of injury. Plaintiff has the burden of proof to establish that Plaintiff’s injuries were caused by the Defendant’s conduct to a reasonable degree of medical certainty, which generally translates more likely true than not. Doctors hired by insurers, product manufacturers, and public entities would frequently muddy the waters by proposing many possible causes, such as an old back injury, or something that happened at work after an accident, and conclude there were several alternate possible causes of injuries other than defendant’s conduct. They did not have to meet the standard of medical probability. A case called Kline v Zimmer (2022) 79 Cal App. 5th 123, allowed this and defendants had no difficulty finding doctors who would testify to a myriad of potential causes. Jurors often did not get the difference between possible and medically probable and injustice resulted.
As a result of the enactment of Evidence Code 801.1 a doctor can no longer engage in proposing endless possibilities as potential bases of the injuries. Instead, a doctor’s testimony related to medical causation must be based on a reasonable medical probability. If the doctor believes the football injury or car wreck 21 years ago is the cause of the current injury, it must be based on medical probability, not simply possible. No longer can Defendants use doctors to throw smoke screens of alternative causes based on “possibilities”.
Here is the new statute:
801.1. (a) In a general civil case, as defined in Rule 1.6 of the California Rules of Court, where the party bearing the burden of proof proffers expert testimony regarding medical causation and where that party’s expert is required as a condition of testifying to opine that causation exists to a reasonable medical probability, the party not bearing the burden of proof may offer a contrary expert only if its expert is able to opine that the proffered alternative cause or causes each exists to a reasonable medical probability, except as provided in subdivision (b).
(b) Subdivision (a) does not preclude a witness testifying as an expert from testifying that a matter cannot meet a reasonable degree of probability in the applicable field, and providing the basis for that opinion.
(Amended (as added by Stats. 2023, Ch. 75) by Stats. 2023, Ch. 190, Sec. 1. (SB 135) Effective September 13, 2023. Operative January 1 2024, pursuant to Sec. 13 of Ch. 190, Stats 2023.)
The Brandi Law firm has a long history of advocacy for people seriously injured by defective products, including defective automobiles, drugs, medical devices, industrial equipment, exploding batteries, to household products, unsafe roads, negligent drivers. If you or a loved one were injured through the fault of another please contact Thomas Brandi (tjb@brandilaw.com), Austin Fish (amf@brandilaw.com) or call 415-989-1800.