Negligence per se in Causation

Question 1

Zuchowicz v. United States

Answer 1

π was prescribed medicine but at twice the recommended dose. π experienced severe side effects and eventually died.
Rule: Where a negligent act increases the chances that a particular type of accident would occur, and such an accident does in fact occur, a court may conclude that the negligent conduct was the cause of the injury.

Court held: b. The court’s reasoning is reminiscent of Martin v. Herzog’s use of negligence per se but instead of using it to establish breach of a duty of care is using it here to establish causation.

Question 2

Herskovits

Answer 2

∆ was negligent in diagnosing decedent’s cancer which led to a 14% decrease in her chance of survival .

Rule: A defendant’s conduct that increases the risk of death by decreasing the chances of survival (e.g. from 39% to 25%) is sufficient evidence to take the issue of proximate cause to the jury because actions forced the patient to lose her chance (lost chance) of survival.