dissenting.
With all due respect, I cannot join the majority opinion. My factual framework, for analytical purposes, is as follows: There is no evidence that the severe head trauma Vivianna suffered was inflicted by the defendant, Muro; but she became aware, by her own admission, at 7 p.m. on October 27, 2002, that Vivianna was seriously injured or ill. Yet, Muro failed to seek help for Vivianna until shortly after 11 p.m., when she and Jose took Vivianna to Tri-County Hospital.
I have no hesitancy whatsoever in agreeing with the trial court’s finding, affirmed by my colleagues, that Muro knowingly and intentionally failed to provide necessary care to Vivianna. However, under § 28-707, for this conviction to stand, the act of child abuse — failure to provide necessary care in this case — must be one which “results in the death of such child.” This language poses the question of what the State must prove in order to establish the statutorily required relationship between the act of abuse and the child’s death. I submit that the focus must be on the language of the statute requiring that the abuse “resulted]” in Vivianna’s death in order for Muro to be convicted of the Class IB felony.
Therefore, the question becomes whether the evidence is sufficient to prove causation. It is apparent from the recitation of evidence in the majority opinion that the proposition that Vivianna would not have died but for Muro’s failure to seek necessary care is, at best, extremely tenuous. The doctors repeatedly testified in terms of “possibly,” “could have,” “might have,” or “may have.” Whether Vivianna would have lived or died had medical treatment been sought sooner is obviously a question requiring expert medical testimony. There was no medical testimony that it was probable that the failure to obtain necessary care earlier than 11 p.m. was a cause of Vivianna’s death, and therein lies the problem.
*58Most of the Nebraska case law on the sometimes difficult subject of causation in criminal cases involves motor vehicle homicide prosecutions. For example, in State v. Sommers, 201 Neb. 809, 272 N.W.2d 367 (1978), the defendant was charged with motor vehicle homicide by virtue of an allegation that he unlawfully operated his vehicle by having .10 of 1 percent or more by weight of alcohol in his body at the time he collided with the decedent’s vehicle. The court first said that the State’s burden was to prove the unlawful presence of alcohol in the defendant’s bodily fluid and then “the further burden to establish that this unlawful act was a proximate cause of the death of the deceased.” Id. at 810-11, 272 N.W.2d at 369. The court in State v. Sommers, 201 Neb. at 811-12, 272 N.W.2d at 369, said that by proximate cause in a case involving death, it “meant a moving or effective cause or fault which, in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the death and without which the death would not have occurred.” The phrase “without which” frames my difficulty.
In State v. William, 231 Neb. 84, 88, 435 N.W.2d 174, 177 (1989), the court, again in a motor vehicle homicide prosecution, extensively discusses proximate cause and, quoting from its earlier opinion in State v. Dixon, 222 Neb. 787, 387 N.W.2d 682 (1986), which quoted in part from State v. Spates, 176 Conn. 227, 405 A.2d 656 (1978), twice said:
“Conduct ... is not a cause of an event if that event would have occurred without such conduct. . . .
“ ‘[Conduct which proximately causes death] is the cause without which the death would not have occurred and the predominating cause, the substantial factor, from which death follows as a natural, direct and immediate consequence. . . .’”
The court in State v. William makes it clear that to give rise to criminal liability, the harm which results need not be intended, and that it is sufficient where death or injury caused by the defendant’s conduct is a foreseeable and natural result of the conduct. The court in State v. William used State v. Rotella, 196 Neb. 741, 246 N.W.2d 74 (1976), to emphasize that in a motor vehicle homicide case, contributory negligence on the part of the deceased is not a defense *59to the charge, and that the issue “ ‘is whether [the] defendant’s violation of law was a contributing factor to the death.’ ” (Emphasis omitted.) 231 Neb. at 89, 435 N.W.2d at 178.
In State v. William, the defendant claimed that the police officer who was chasing him was violating police policy or was negligent in his decision to pursue the defendant at high rates of speed. However, the court found that the defendant’s actions were the proximate cause of the death of his passenger when he collided with another vehicle at an intersection during the pursuit. The court in State v. William said that the defendant’s flight from the officer, his high rate of speed, and his failure to stop at the final stop sign all made up “ ‘ “the cause without which the death would not have occurred.” ’ ” 231 Neb. at 90, 435 N.W.2d at 178. The court in State v. William said that even if the officer’s actions were incorrect, they did not negate the conclusion that it was the defendant’s conduct which was the efficient cause, the one that necessarily set in operation the factors that accomplished the death. To me, the foregoing cases define the issue in this case, given the statutory language of § 28-707(6). Thus, I believe the issue is whether the failure to seek necessary care was such that it was “ ‘the cause without which the death would not have occurred.’ ” State v. Dixon, 222 Neb. at 797, 387 N.W.2d at 688.
The problem inherent in using the foregoing authority involving motor vehicle homicide is that while the statements of legal principles are cogent, the facts in the foregoing motor vehicle homicide cases are clearly distinguishable from those in this case. In the instant case, it is not a matter of a motorcyclist with a passenger fleeing from a pursuing police car at an excessive rate of speed who collides with a third vehicle at an intersection, causing the passenger’s death, but, rather, a matter of a severe head injury that has already been inflicted on a child and the child’s mother’s becoming aware of the child’s dire condition at 7 p.m. but not going to the hospital until 4 hours later. The testimony of medical experts established that without treatment, the head injury was inevitably fatal, and the trial judge so found. However, the conclusion that the injury was inevitably fatal without treatment begs the question of causation — as such can be said of virtually any severe injury if it goes untreated long enough. Thus, concluding that the head injury to Viví anna was inevitably *60fatal without treatment is really an essentially meaningless conclusion. Moreover, evidence that the injury was inevitably fatal without treatment does not equate to proof of causation in this case — because treatment was in fact sought. Rather, the core question is whether, with the requisite degree of probability, earlier treatment would have made a difference — meaning whether it was probable that Vivianna would have lived, because the proof must show that the delay caused her death. I submit that the medical evidence does not establish, by the required standard of proof, that Vivianna could have been saved by earlier treatment.
The standard for medical proof we have typically applied is probability. For example, in Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999), a medical malpractice case, the defendant doctor contended that a directed verdict should have been entered. The Nebraska Supreme Court discussed the evidence needed to establish proximate cause of the plaintiff’s claimed injury. Doe v. Zedek makes it abundantly clear that even if a defendant doctor is negligent, such negligence is not actionable unless it is “a proximate cause of the plaintiff’s injuries or is a cause that proximately contributed to them.” 255 Neb. at 970, 587 N.W.2d at 891. The court in Doe v. Zedek found that the plaintiff’s claim was such that it was subjective in nature and that thus, the cause and extent of the injury had to be established by expert medical testimony. Obviously, the effect of a delay in treatment, given severe injuries such as Vivianna’s in this case, is likewise a subject for expert testimony. The court in Doe v. Zedek found that the use of the term “possible” by the plaintiff’s expert was insufficient because it did not “encompass either ‘reasonable medical certainty’ or ‘reasonable probability,’ i.e., more likely than not.” 255 Neb. at 975, 587 N.W.2d at 893. The court elaborated that “possible” is “mere speculation, which is not sufficient”; that while the medical testimony need not be couched in magic words such as reasonable medical certainty or reasonable probability, it must be “sufficient as examined in its entirety to establish the crucial causal link between the plaintiff’s injuries and the defendant’s negligence,” id. at 975, 587 N.W.2d at 894; and that because medical expert testimony regarding causation based upon possibility or speculation is insufficient, “it must be stated as being at least ‘probable,’ in other words, more likely than not,” id., citing *61Berggern v. Grand Island Accessories, 249 Neb. 789, 545 N.W.2d 727 (1996). The court in Doe v. Zedek, supra, thus concluded that the plaintiff failed to meet her burden of proof on the issue of causation and that the defendant’s motion for a directed verdict should have been granted. See, also, Morton v. Hunt Transp., 240 Neb. 63, 480 N.W.2d 217 (1992) (medical causation testimony expressed in terms of possibility is generally insufficient though testimony couched in terms of probability may be sufficient, and sufficiency of expert’s opinion is judged in context of expert’s entire statement); Fowler v. Lester Electric, 1 Neb. App. 693, 501 N.W.2d 728 (1993) (medical testimony couched in terms of possibility is insufficient to prove causation). The last two mentioned cases are workers’ compensation cases.
The majority mistakenly argues that I seek a “bright-line” rule that the medical testimony or testimony of a chance of survival should be of a particular numerical percentage. Rather, I seek application of the same rule which we have applied in cases of far less consequence than this. Indeed, I respectfully suggest to my colleagues that the rule I seek to have applied has already been laid down in Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999). That rule is that medical evidence which is offered to prove an inherently subjective proposition about which neither judge nor jury can know without expertise cannot be merely guesswork or speculation — which is all there is here (and I quote the majority’s opinion: “The evidence in the present case indicated that there was a possibility for Vivianna to survive these injuries, but for Muro’s failure to seek medical attention for Vivianna” and “[W]e conclude that the evidence that there was a possibility of survival and that Muro’s actions removed that possibility of survival is sufficient”).
Instead, Doe v. Zedek teaches that such evidence must rise to the level of probability, or of “more likely than not” or “reasonable medical certainty.” The majority fails to explain why the standard for medical evidence to collect money in a civil case does not apply with equal force when a criminal defendant’s liberty is at stake — the liberty of a defendant who must be proved guilty beyond a reasonable doubt. The majority’s reasoning becomes the functional equivalent of concluding that the evidence shows “it is possible that Muro committed this crime.”
*62Accordingly, I conclude that we should not impose a 20-year prison sentence on Muro using medical testimony which gets no stronger than a “possibility” or a “chance” that Vivianna “might” have survived the injury, which the evidence suggests was inflicted by Jose, had she gotten Vivianna to the hospital sometime before approximately 11 p.m. In short, a criminal conviction which requires proof of guilt beyond a reasonable doubt should not be based upon medical evidence of proximate cause which would, as a matter of law, clearly fall short of the proof needed to support a workers’ compensation claim, a personal injury claim, or a medical malpractice claim. And, this is particularly so when these types of civil cases require proof by only a preponderance of the evidence, a far lesser standard of proof than the proof beyond a reasonable doubt required here.
In 1 Wayne R. LaFave, Substantive Criminal Law § 6.4(c) (2d ed. 2003), the author suggests that while problems of legal causation arise in both tort and criminal settings and courts have generally treated legal causation the same in criminal law as in tort law, there is a move away from the notion that in criminal cases, the legal causation requirement applicable in tort cases is controlling. As justification for that movement, the author explains that “[t]he requirement of causation in criminal law, more often than not, serves not to free defendants from all liability but rather to limit their punishment consistently] with accepted theories of punishment.” Id. at All.
I suggest, remembering that § 28-707 is a statutory scheme defining certain acts of child abuse and then grading those criminal acts in severity according to the defendant’s state of mind and the result, that LaFave’s observation is particularly pertinent here. In other words, if there is no expert medical evidence which meets the Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999), standard in proving that Muro’s inaction was such that without such inaction, Vivianna would not have died, then we should not convict Muro of the most severe crime under the child abuse statute, § 28-707(6) — causing the child’s death, a Class IB felony.
No physician was willing to testify that even if Vivianna had been brought to the hospital immediately after 7 p.m., when Muro became aware of Vivianna condition, it was more likely than not, it was probable, or it was reasonably certain that Vivianna would *63have survived. The best any doctor could offer was that Vivianna had “a chance” and that it was “possible” or there was a “5% chance” she would have survived.
I would hold that the medical evidence, taken as a whole, was insufficient as a matter of law to prove that the child abuse committed by Muro, i.e., delay in seeking treatment, “result[ed] in the death of [Vivianna],” see § 28-707(6). As a result, Muro could not be found guilty beyond a reasonable doubt of the crime with which she was charged. Muro should have been convicted of the lesser-included offense, a Class IIIA felony, where the child abuse is committed knowingly and intentionally but “does not result in serious bodily injury,” § 28-707(4). I come to this result because of another failure of proof. Neb. Rev. Stat. § 28-109(20) (Cum. Supp. 2002) defines serious bodily injury for the purpose of § 28-707 to be bodily injury which involves, in the worst case, a substantial risk of death. There is also no medical evidence meeting the requisite standard that Muro’s inaction caused a substantial risk of death above and beyond that posed by the original injury to Vivianna’s brain — which injury no one claims Muro inflicted.
For the foregoing reasons, I would reverse the district court’s judgment and remand the cause with directions to find Muro guilty only of the Class IIIA felony under § 28-707(4), which carries a maximum penalty of 5 years’ imprisonment, as she clearly “abused” Vivianna by failing to seek necessary and proper care. Because proper proof of the consequences of that failure is lacking, except for guess, chances, possibilities, and speculation, I respectfully dissent.