PROVING CAUSATION IN CLINICAL RESEARCH NEGLIGENCE

• Published in: Virginia law review Vol. 108; no. 2; pp. 535 - 579
• Main Author: Paul, Stephen
• Format: Journal Article
• Language: English
• Published: Charlottesville Virginia Law Review 01.04.2022; The Virginia Law Review Association
• Subjects: Causality; Causation; Clinical medicine; Injuries; Jurisprudence; Law; Legal research; Liability (Law); Malpractice; Medical personnel; Medical research; Negligence; UNITED STATES; United States > US
• ISSN: 0042-6601; 1942-9967

Investigators conducting clinical research create a risk of harm to their human subjects. The common law recognizes a variety of duties that these investigators owe to their subjects. When they breach these duties, such as by negligently designing the study or failing to obtain informed consent, subjects who experience a negative outcome relative to not having participated in the study should be able to maintain a cause of action for negligence against the investigators. Yet when researchers are negligent, it will often be impossible to show whether the study caused any individual subject’s injuries. The infamous SUPPORT study, in which researchers should have reasonably foreseen that they were exposing randomly selected infants to a higher risk of death, is one example. As the subsequent litigation over that study showed, traditional principles of causation operate to make it difficult or impossible for research subjects to pursue such claims against investigators. This is because the factual circumstances of most clinical research preclude individual plaintiffs from being able to show that their injuries were more-likely-than-not caused by their participation in the study. The loss of chance doctrine developed in medical malpractice suits provides one potential solution for overcoming this causation problem. An even better solution, which provides optimal deterrence and asgood– as-possible compensation for injured subjects, would be for courts to adopt a theory of “marginal causation,” which permits proof of causation by the aggregate marginal damages suffered by plaintiffs as a group, as an extension of the existing doctrines of loss of chance and alternative liability.