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R.W. v. Schrein11/1/2002
be part of the professional service that the doctor contracts with the patient to provide. David S. Florig, Insurance Coverage for Sexual Abuse or Molestation, 30 Tort & Ins. L.J. 699, 727 (1995).
This analysis, with which we agree, echoes some of the most basic and familiar concepts of tort causation.
"Proximate cause" . . . is merely the limitation which the courts have placed upon the actor's responsibility for the consequences of the actor's conduct. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would "set society on edge and fill the courts with endless litigation." As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy.
This limitation is to some extent associated with the nature and degree of the connection in fact between the defendant's acts and the events of which the plaintiff complains. W. Page Keeton et al., Prosser and Keeton on the Law of Torts ยง 41 at 264 (5th ed. 1984 & Supp. 1988).
The majority rule, then, expresses a difficult truth: that appellants' injuries, in the instant case and most others, are not caused by any act of medical treatment that would normally be associated with the provision of a "professional service." The common thread running throughout the majority rule cases is the necessity for, and lack of, a direct causal link between appellants' damages and any legitimate medical treatment. " here must be a causal relationship between the alleged harm and the complained-of professional act or service, that is, it must be a medical . . . act or service that causes the harm, not an act or service that requires no professional skill." Roe v. Federal Ins. Co., 412 Mass. 43, 49, 587 N.E.2d 214, 217 (1992). Accord, Lindheimer v. St. Paul Fire & Marine Ins., 643 So. 2d 636 (Fla. App. 1994); Steven G. v. Herget, 178 Wis. 2d 674, 505 N.W.2d 422 (Wis. App. 1993). " here must be a causal relationship between the treatment (i.e., professional services) and the harm alleged by the victim." Standard Fire Ins. v. Blakeslee, 54 Wash. App. 1, 10, 771 P.2d 1172, 1177 (1989) (citing Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Idaho App. 1984)).
As most clearly stated by the Supreme Court of New Hampshire, " he specified source out of which damages must arise, according to the terms of the insurance policy, is professional services rendered, or which should have been rendered." Niedzielski v. St. Paul Fire & Marine Ins. Co., 134 N.H. 141, 146-47, 589 A.2d 130, 133 (1991). The minority rule abrogates this principle.
The court in St. Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565, 720 P.2d 540 (Ariz. App. 1986), attempts to connect the plaintiffs' damages to professional services by asserting that the professional service "is intertwined with and inseparable from" the tortious conduct which was the actual direct cause of the plaintiffs' damages. However, the Asbury approach rests on the assertion that it is impossible to separate legitimate medical treatment from sexual assault. There may, in some cases, be a fact question presented as to whether the medical professional's conduct was, in fact, legitimate medical treatment. This does not mean, however, that we can conclude it is not possib
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