(concurring). I agree with the majority that the case should be remanded for a new trial. I write to clarify the law as I interpret it.
The trial court was in error to hold that the plaintiff, Carol Ehlinger, had to prove that proper treatment and care, which was not given to her as a result of Dr. Sipes' conceded failure to diagnose she was pregnant with twins, would have worked to avoid the children's conditions. The plaintiff does not have to prove the result would have been different if non-negligent care had been provided.
Under the substantial factor test, a showing that proper medical care was not provided is sufficient proof that the negligent conduct increased the risk and deprived the patient of the opportunity for continuing the pregnancy.
The issue is one of a normal substantial factor. The plaintiff does not have to prove the ratio of success of the absent care. The lost opportunity line of proof should be considered as constituting sufficient proof to create a jury issue under the substantial factor theory of causation.
I concur with the majority.