Recently, Frontal 21 – a German newscast – reported about the handling of error in treatments under German health care law (about which I am not an expert). A lawyer specializing in health care law explained that it is very difficult to win lawsuits against medical doctors (MD’s) because the patient claiming to experience treatment error has to substantiate this claim (except for grave treatment error). Particularly problematic are cases where patients die due to treatment error and the patient suffered from a disease that would cause death if left untreated. MD’s charged of treatment error argue that the patient would have died anyway and that the alleged error is not causal for the patient’s death. According to the report, this interpretation is supported by German health care law, meaning that lawsuits have little chance of successful litigation.
This handling of treatment errors touches on two prominent issues from the philosophy of science: overdetermined events and contrasts or counterfactuals. On the first point, the question is: what is the cause when two events can bring about the outcome at the same or different points in time? An example from the philosophy of science literature takes the assassination of a person as the outcome (e.g., Sartorio, Carolina (2005): Causes as Difference-Makers. Philosophical Studies 123: 71-96). Imagine two assassins operate independently. One assassin opts for poisoning, while the other opts for a sniper assault. The first assassin poisons the target, but before the target dies, the second sniper shoots the individual (sometimes, you have stories like this in movies or TV series like CSI). This is an instance of overdetermining causes because the poison and the shooting alone would have sufficed to kill the target.
Now, is the second assassin and the shooting the cause of the victim’s death? If one is prepared to infer causation from a chain of events – a mechanism, if you like – the answer would be yes because the bullet fired by the sniper terminates the target’s life (e.g., Schaffer, Jonathan (2003): Overdetermining Causes. Philosophical Studies 114 (1-2): 23-46). But it is less straightforward from a counterfactual perspective because if the shooter had missed the target, the person would nevertheless have died from the poison. In this naïve view, the answer would be no. The question of what a cause is when one is confronted with overdetermined causes is not settled by the philosophy of science literature. Apparently, however, German health care law takes a simple counterfactual view on causation because it denies error in treatment as a cause of the patient’s death if the patient suffered from a deadly disease.
The second interesting aspect is the question of what the relevant contrast or counterfactual is. Health care law compares the factual world in which the patient died because of an error in treatment with a counterfactual world in which the patient does not receive any treatment and dies from the deadly disease. Personally, I was a little bit struck by this because the patient receives treatment in order to be cured from the disease. An alternative, at least equally plausible counterfactual for the world in which error leads to death is one where no error is committed and the patient is cured. This counterfactual would make it easier to charge MD’s with error, while the counterfactual that is made in health care law favors the MD. I am not making any substantive plea for either counterfactual here, but simply note the relevancy of topics discussed in the philosophy of science for everyday life (or death, in this case).