For instance, in the event of a puncture of the arterial wall by a catheter during a procedure , the defendant may argue that even if that was negligence the patient only had a 5% chance of survival. The argument then goes that patient probably was going to die anyway. As such, any negligence that may have been committed was really irrelevant.
This is a frequent defense raised in professional negligence claims and is frequently one that has some merit.The doctor may have been negligent, but the patient would have died anyhow. That is, the negligence may not have been a cause of injury since the patient may have suffered that injury in any event.
The question of proximate cause in most tort cases is to be resolved by the jury as the finder of fact in the case.In resolving that question the jury is called upon to decide whether the negligent conduct was a near cause,as opposed to a remote cause, of the injury. If the jury can answer that question in the affirmative then the plaintiff may be entitled to recover.
Let’s look at another example. Suppose I throw a baseball to my son. He fails to catch the ball. The ball goes through a neighbor’s front window and out a back window. The ball then knocks over the outdoor grill that is behind the house. The grill rolls down the hill in the backyard and kills the neighbor who lives at the bottom of the hill. Am I liable for the neighbor’s death? To put it another way was my act of throwing the ball a proximate cause of the neighbor’s death? Probably not.The reason being is that it is more likely to be thought of as a remote cause of the death as opposed to a near cause.