Coronavirus death numbers in controversy: the legal/medical causation framework of analysis
There is a growing narrative of controversy over whether the federal government or others have over-stated the number of deaths attributed to the Coronavirus. There is one train of thought that the Coronavirus infects people with already precarious health conditions, that the person’s death should therefore, be attributed the underlying health condition, and not the Coronavirus. Where does one draw the line?
Perhaps an analogy to legal/medical causation principles will assist with this analysis. Judges instruct juries to determine whether a fact has been proved by a “Preponderance of the Evidence.” Described another way, if one were to imagine a scale, that is evenly balanced; if the scale tips, ever so slightly, in favor of one side or other, then that fact it to be considered as proved. Is something more likely than not to be valid and true and factual, in other words. This is much different that proving something “beyond a reasonable doubt,” the standard used in by criminal courts, a much more strict standard, as life and liberty are on the line. If any reasonable doubt can be shown, juries are instructed to acquit a criminal.
So the question posed in the legal/medical causation context would be whether, to a reasonable degree of medical certainty, the Coronavirus most likely caused a person to die sooner than they would have, had they not had the coronavirus.
When a person suffers injury or death and has a pre-existing condition, courts do not allow persons to be compensated for the pre-existing condition itself, or the natural progression of a pre-existing condition; but rather, do compensate persons whose pre-existing conditions have been aggravated or exacerbated by the negligent event.
It is not possible under present circumstances to conduct full-blown medical histories and death causation analyses on everyone who dies of an underlying condition while suffering significant Covid-19 symptoms. However, what are the odds that absent the Covid-19 infection, certain people’s deaths were imminent? Probably very high, in some limited cases, of the already terminally ill people. So where do you draw the line?
So do you split hairs and say those deaths don’t count to be included as Covid-19 deaths, because the Covid-19, absent the pre-existing medical condition itself, didn’t kill the person? In legal/medical causation analysis, there are two concepts of cause: direct cause; and proximate cause. Direct cause would mean that the person would actually die from the Covid-19 virus itself; but proximate cause is more appropriate here. Proximate cause has been defined as “[t]hat which in a natural and continuing sequence, unbroken by any new cause, produces an event, and without which the event would not have occurred.” Dodenhoff v. Lines, 2 S.E.2d.56, 190 S.C. 60 (1939). (emphasis added).
In other words, without the Coronavirus, would the person have died anyway? If the person would have lived one (1) week more absent Covid-19, is that to be included in the list of Covid-19 causally related deaths? It is a slippery slope, no doubt.
Life has value. Every moment of every life, has value. We are points of energy, a bundle of electrochemical impulses with a soul and spirit. When we die, the lights turn off. Our shell of a body lays empty, and our spirit moves on. But every moment of that electrically charged time, when our bodies are charged and living, has value.
In a civil court of law a judge or a jury can adjust an award when a medical condition was or death was imminent, yet aggravated by a new trauma. We can debate how much one person or the other would have lived, and what quality of life they had left on earth etc.., based on their respective underlying medical conditions. But if we can say, that had the Coronavirus not invaded a person’s body, they would, to a reasonable degree of medical certainty, most probably, have lived longer, then its fair to include it as a causally related death; and in most cases, there is no reasonable doubt, that where someone has suffered significant symptoms from Coronavirus, contemporaneously with other pre-existing medical conditions, that the person’s death was untimely. The known facts beg for that conclusion.