Deutsch v. Shein

In Deutsch v. Shein, Ky., 597 S.W.2d 141 (1980), the plaintiff was hospitalized to determine the cause of her nausea and weakness. The defendant doctor submitted the plaintiff to numerous x-rays without first performing a pregnancy test. When plaintiff later learned she was pregnant at the time the x-rays occurred, she made the agonizing decision to terminate her pregnancy due to her fears that the radiation had damaged the fetus. In explaining the jury's decision, the Court noted: The jury found that Dr. Shein failed to use that degree of care and skill which is expected of a reasonably competent practitioner specializing in internal medicine, acting in the same or similar circumstances, by not obtaining a pregnancy test before Mrs. Deutsch was administered x-rays. The jury further found, however, that Dr. Shein's failure to obtain a pregnancy test, coupled with the administering of x-rays, was not a substantial factor in causing the injury of which Mrs. Deutsch complained. Deutsch, 597 S.W.2d at 143. The Court found that it was erroneous for the jury to find that the doctor's actions were not a substantial factor in causing the plaintiff's injury once it had decided that he was negligent in failing to administer the pregnancy test. In so holding, the Supreme Court stated: the jury's finding in the negative was encouraged by the use of "substantial factor in causing the injury of which Mrs. Deutsch complained" in the instructions. Our use of the substantial factor test . . . shows the test applies to the event which results in the injury, not the injury itself. Citations omitted. The injury need only flow directly from the event. Id. at 145. Stated another way, the Court recognized that the x- rays, and not the doctor's failure to perform a pregnancy test, were what caused the injury. Therefore, since the x-ray caused the injury, the jury had no choice but to absolve the doctor under the instruction as it was given. Thus, the jury should have been instructed to find for the plaintiff if it determined that the doctor's failure to administer a pregnancy test was a substantial factor in causing the event that led to the injury.