CRAWLEY, Judge.

In September 1994, Honorio Montanez, a/k/a Samuel Montanez, sued QuestCare, Inc., Dr. Harold Q. Wilson, and Charles E. Jones, the warden of Holman Prison. Mon-tanez alleged that the defendants had violated his civil rights by providing inadequate medical care during his incarceration at Holman Prison. Montanez requested the trial court to declare that the defendants had violated his civil rights, to enjoin the defendants from ignoring his requests for medical treatment, to order the defendants to perform certain medical procedures, and to award him damages for medical malpractice. The trial court entered a summary judgment for all defendants.

Montanez argues that the trial court erred in entering summary judgment for all the defendants. A motion for summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), A.R.Civ.P. Moreover,

“In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’”

Capital Alliance Insurance Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994) (citations omitted).

In a medical malpractice ease, “once the defendant offers expert testimony in his behalf (albeit his own opinion), establishing lack of negligence, the defendant is entitled to a summary judgment, unless the plaintiff counters the defendant’s evidence with expert testimony in support of the plaintiffs claim.” Swendsen v. Gross, 530 So.2d 764, 768 (Ala.1988). See also, Ala.Code 1975, § 6-5-548. Montanez presented no expert testimony to oppose Dr. Wilson’s affidavit stating that he had administered adequate medical care to Montanez. Therefore, the trial court properly entered the summary judgment for the defendants on the claim of malpractice.

Montanez further argues he was deprived of adequate medical treatment and that that deprivation violated his constitutional rights as a prisoner. The United States Supreme Court has held:

“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ ... proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.”

Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976).

In his affidavit Montanez states that he requested several medical treatments that were not provided. Specifically, Montanez states that he requested a hearing test, a new diet that would not aggravate his diabetes, and treatments to relieve severe pain in his leg. In his affidavit, Dr. Wilson stated that he successfully removed a benign lesion from Montanez’s leg. Dr. Wilson further stated that Montanez is not dependent on insulin to treat his diabetes and that he refuses to take his oral medication for diabetes. Dr. Wilson also stated that he had *468never denied Montanez a hearing test and that Montanez did not inform anyone of hearing problems when Dr. Wilson examined inmates at sick call screening.

The United States Court of Appeals for the Eleventh Circuit has stated that an inmate’s preference for treatment different from that administered by the health care providers does not amount to a violation of the Eighth Amendment. Hamm v. DeKalb County, 774 F.2d 1567 (11th Cir.1985). In this case, we conclude that the trial court properly entered the summary judgment for the defendants on the claim that the medical treatment administered to Montanez violated the Eighth Amendment. Montanez failed to present substantial evidence that Dr. Wilson was deliberately indifferent to Montanez’s need for medical treatment. Montanez merely disagrees with the prescribed treatments and disputes some of Dr. Wilson’s diagnoses. The fact that Montanez has a disagreement does not indicate a violation of the Eighth Amendment.

AFFIRMED.

Morgan, A.C.J.

In this medical negligence case, the trial court denied defendant Anderson's motion for summary judgment and granted plaintiff Van Hook's cross motion as to liability only. Holding that defendant's motion should have been granted, we reverse and remand with directions to dismiss the complaint against defendant Anderson.

The defendant is a surgeon who performed a hernia operation on the plaintiff at Tacoma General Hospital. He was assisted by muses employed by the hospital. During the operation, he used a number of gauze packs called sponges.

*356 The hospital had previously adopted written procedures governing the use of sponges. These procedures required that two nurses count sponges before they were used, and that two nurses count sponges as they were removed from the patient. If the two counts matched, the nurses were to record that fact in the nursing record of the operation. If the two counts did not match, the nurses were to notify the surgeon, and the entire surgical team was then to look for the missing sponge.

Near the end of the operation, the nurses informed the defendant that the two counts matched. They also initialed their nursing report to reflect that fact. The operation was completed and the plaintiff was moved to the recovery room.

As the defendant was dictating his postoperative report, he became concerned because he could not recall removing one of the sponges. He checked the record of nursing care and found that it listed the sponge counts as correct. When he questioned the nurses personally, however, he was told that the sponge he was concerned about had been counted while it was still in the plaintiff's body.

An x ray showed a sponge still in place on the plaintiff's right side. The defendant immediately informed the plaintiff, who was still in the recovery room. The plaintiff was returned to surgery and the sponge was removed.

After plaintiff sued, the parties made cross motions for summary judgment. The defendant submitted the deposition of Dr. Sola, an expert selected by the plaintiff, who testified:

Q: Would you agree that a surgeon performing bilateral [sic] herniorrhaphies is operating within the standard of care, if he relies on the sponge count provided to him by the nurses as he proceeds to close the incisions?

A: Yes.

The defendant also submitted his own affidavit, in which he testified:

The standard of care requires the use of sponges and gauze packs as part of the surgical procedure to hold different parts *357 of the anatomy out of the way in order for the surgeon to repair the patient's hernia. The standard of care requires the nurses to provide the sponges and the standard of care also requires the nurses to make sure the sponges handed back to them by the surgeon equal the number of sponges they provided the surgeon. This count must be made prior to the surgeon's closing the incision. The nurses are required to report to the sturgeon as to whether the sponge count is correct prior to completing the incision closure.

Neither party offered any other testimony with regard to how the defendant should have dealt with the sponges and gauze packs used in the operation.

The trial court denied defendant's motion and granted plaintiff's as to liability only. Defendant applied for discretionary review, and his application was granted by a commissioner of this court. 1

Neither party disputes the liability of the nurses, or of the hospital as their employer. We assume that the nurses had a duty to count the sponges before and after use, that their failure to do so was negligence as a matter of law, and that the hospital was hable under the doctrine of respon-deat superior. 2 See McCormick v. Jones, 152 Wash. 508, 510-11, 278 P. 181, 65 A.L.R. 1019 (1929).

We are asked to decide the liability of Dr. Anderson. With regard to him, we divide our analysis according to direct and vicarious liability.

Direct Liability

One element of an action for medical negligence is the legal duty of care. Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 468, 656 P.2d 483 (1983). Under Washington law, that duty requires that a doctor use care equal to or exceeding *358 that which would be exercised by a reasonably prudent doctor who has the degree of skill, care, and learning possessed by other members of the medical profession in this state. RCW 7.70.040; RCW 4.24.290; Harris v. Groth, 99 Wn.2d 438, 439, 444-47, 663 P.2d 113 (1983). The standard of care actually practiced by members of the profession is evidential but not conclusive with regard to what constitutes reasonable prudence. Harris v. Groth, 99 Wn.2d at 451. It follows that the legal duty of care and the medical standard of care are similar but not identical concepts.

Another element of an action for medical negligence is breach of the legal duty of care, also called negligence. Harbeson v. Parke-Davis, Inc., 98 Wn.2d at 468. A defendant moving for summary judgment on the element of negligence has the initial burden of showing a lack of evidence on that element. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989); LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975). Once that is accomplished, a plaintiff must produce evidence sufficient to support a reasonable inference that the defendant was negligent. Ce lotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The evidence from both sides is viewed in the light most favorable to plaintiff, both in the trial court and on appeal. Hontz v. State, 105 Wn.2d 302, 311, 714 P.2d 1176 (1986); Wendle v. Farrow, 102 Wn.2d 380, 383, 686 P.2d 480 (1984).

Whether evidence is sufficient to support a reasonable inference that the defendant was negligent can be subdivided into two questions. First, is it sufficient to support an inference of negligence? Second, is it sufficient to support an inference that the negligence was the defendant's?

Inadvertently leaving a foreign object in the body of a patient is sufficient to support an inference of negligence. Conrad v. Lakewood Gen. Hosp., 67 Wn.2d 934, 937, 410 P.2d 785, 10 A.L.R.3d 1 (1966); McCormick v. Jones, 152 Wash. 508, 511, 278 P. 181, 65 A.L.R. 1019 (1929); Nelson v. Murphy, 42 Wn.2d 737, 739-40, 258 P.2d 472 (1953) (dictum); Wharton v. Warner, 75 Wash. 470, 475, 135 P. 235 (1913); *359 Wynne v. Harvey, 96 Wash. 379, 384, 165 P. 67 (conceded by doctor), aff'd, 99 Wash. 693, 168 P. 896 (1917); Annot., Malpractice: Liability of Physician, Surgeon, Anesthetist, or Dentist for Injury Resulting From Foreign Object Left in Patient, 10 A.L.R.3d 9, § 3 (1966). Consequently, the evidence in this case supports an inference that someone was negbgent.

Evidence is sufficient to support an inference that negbgence was the defendant's when a foreign object is left in the patient and, according to expert testimony, the defendant had the responsibibty to remove it. Conrad v. Lakewood Gen. Hosp., 3 67 Wn.2d at 937; McCormick v. Jones, 4 152 Wash. at 511. Absent expert testimony, 5 evidence is sufficient to support an inference that negbgence was the defendant's when a foreign object is left in the *360 patient and the defendant is either (a) the surgeon in charge of the operation, Nelson v. Murphy, 42 Wn.2d 737, 739-40, 258 P.2d 472 (1953) (dictum); Wharton v. Warner, 75 Wash. 470, 475, 135 P. 235 (1913); Wynne v. Harvey, 96 Wash. 379, 384, 165 P. 67, aff'd, 99 Wash. 693, 168 P. 896 (1917), or (b) a doctor participating in the operation under circumstances warranting a reasonable inference that he or she had the responsibility to remove the object. 6 Conrad v. Lakewood Gen. Hosp., 67 Wn.2d at 939 (circumstances supported inference that assisting general practitioner was negligent). Contrary evidence supporting an inference that negligence was not the defendant's often will not dispel the inference that it was; even if such evidence be "weighty, competent and exculpatory", it will merely generate an issue of fact for the jury to decide under proper instructions. Brown v. Dahl, 41 Wn. App. 565, 582, 705 P.2d 781 (1985). Occasionally, however, evidence supporting an inference that negligence was not the defendant's will be so strong as to dispel the countervailing inference; and when that is the case, the defendant's negligence will cease to be an issue of fact for the jury. Kemalyan v. Henderson, 45 Wn.2d 693, 706, 277 P.2d 372 (1954); 7 Leonard v. Watsonville Comm'ty *361 Hosp., 47 Cal. 2d 509, 519, 305 P.2d 36, 42 (1956); Annot., Applicability of Res Ipsa Loquitur in Case of Multiple Medical Defendants — Modern Status, 67 A.L.R.4th 544 (1989). As summarized in Annot., 67 A.L.R.4th at 557:

[C]lear and uncontradicted testimony at trial that a certain defendant was not responsible for the injury to the plaintiff may dispel, as a matter of law, as to that defendant the inference of negligence which had earlier arisen under the doctrine of res ipsa loquitur.

In this case, the plaintiff did not present expert testimony, but he did introduce evidence that a sponge had been left in his body and that the defendant was the surgeon in charge of the operation. Viewed in isolation, that evidence is sufficient to support a reasonable inference that the defendant was negligent. 8

Plaintiff's evidence, however, cannot be viewed in isolation. A purpose of summary judgment proceedings is to avoid useless trials. Olympic Fish Prods., Inc. v. Lloyd, 93 Wn.2d 596, 602, 611 P.2d 737 (1980); Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977). At trial, it is all the evidence, not just plaintiff's evidence, that determines whether the case involves issues of fact for the jury. 9 CR 50(a). If cross motions for summary judgment have been made and the only inference reasonably available from all *362 the evidence is that a defendant was not negligent, that defendant should be dismissed from the action.

In this case, the evidence viewed as a whole does not support a reasonable inference that defendant Anderson failed to comply with the medical standard of care. It shows (1) that the nurses were responsible for counting sponges inserted and sponges retrieved, and for comparing the two counts; (2) that near the end of the operation, the nurses told the defendant that the two counts matched; (3) that a doctor in charge of an operation is in compliance with the medical standard of care if he or she, in the process of closing an incision, relies on a positive assertion by the nurses that the two counts match; and (4) that the defendant so relied. All of these propositions are virtually undisputed. The third one is expressly supported by Dr. Sola, the expert selected by plaintiff, as well as by Dr. Anderson, and at trial a lay jury would have "no rational ground for disbelieving their testimony". Leonard v. Watsonville Comm'ty Hosp., 47 Cal. 2d at 519.

Nor does the evidence viewed as a whole support a reasonable inference that the medical standard of care agreed upon by Dr. Anderson and Dr. Sola differs from the legal duty of care. Assuming without holding that any difference between the legal duty of care and the medical standard of care can become a jury question in a proper case, see Gates v. Jensen, 92 Wn.2d 246, 253, 595 P.2d 919 (1979) (difference was jury question under prior statute), there is no evidence in this case from which to infer the complexity of the operation; the defendant doctor's other duties; the necessity or desirability of a doctor relying on sponge counts by the nurses; or any other fact from which a jury could find that a reasonably prudent doctor would not have relied on nurses to count sponges in this type of situation, notwithstanding the accepted medical standard of care. Consequently, a jury at trial could not reasonably infer *363 that defendant Anderson breached his legal duty of care despite complying with the medical standard of care.

In conclusion, the evidence does not support an inference that defendant Anderson was directly negligent. Therefore, he was entitled to summary judgment unless he was vicariously responsible for the negligence of the nurses.

Vicarious Liability

In contrast to direct liability, which is liability for breach of one's own duty of care, vicarious liability, sometimes called imputed negligence, W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts 499 (5th ed. 1984), is liability for breach of another's duty of care. Stone v. Sisters of Charity, 2 Wn. App. 607, 610, 469 P.2d 729 (1970); Prosser and Keeton on Torts, at 499; John R. v. Oakland Unified Sch. Dist., 48 Cal. 3d 438, 442, 769 P.2d 948, 949, 256 Cal. Rptr. 766 (1989); see Vanderpool v. Grange Ins. Assn. 110 Wn.2d 483, 493, 756 P.2d 111 (1988) (Callow, J., dissenting). According to the Washington Supreme Court, vicarious liability exists so that the plaintiff will have maximum opportunity to be fully compensated. Vanderpool, 110 Wn.2d at 487. According to the Restatement of Agency, it exists because of the master's right of control. Restatement (Second) of Agency § 220 (1958). According to Prosser, its root is social policy concerning how risk shall be borne. Prosser and Keeton on Torts, at 500. According to the California Supreme Court, it exists because "the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business." John R. v. Oakland Unified Sch. Dist., 48 Cal. 3d at 450 (quoting Johnston v. Long, 30 Cal. 2d 54, 64, 181 P.2d 645 (1947)).

Plaintiff asserts that Washington has adopted the "captain of the ship" doctrine, and that this doctrine makes a head surgeon liable for the negligence of nurses who assist *364 in an operation. Plaintiff bases the argument on the following language from McCormick v. Jones, 152 Wash, at 511:

... [A] mere statement of the facts conclusively shows negligence, and that appellant, being the head surgeon in charge of this operation, is responsible therefor.

The "captain of the ship" doctrine is an adaptation of the "loaned servant" principle in the law of agency. Kemalyan v. Henderson, 45 Wn.2d 693, 700, 277 P.2d 372 (1954); Thomas v. Hutchinson, 442 Pa. 118, 125-26, 275 A.2d 23, 27 (1971). Its effect is to make the head surgeon vicariously liable for the negligence of a nurse or other assistant, notwithstanding that the nurse or assistant is employed by a different person or entity.

According to Kemalyan v. Henderson, supra, application of the captain of the ship doctrine depends on whether there is evidence supporting an inference that the doctor was directing or otherwise exercising control over the actions of the nurse or assistant. Kemalyan, 45 Wn.2d at 699-700. This proposition is consistent with the idea that vicarious liability depends on the master's right of control, as provided in the Restatement of Agency. Restatement (Second) of Agency § 220 (1958). It is also consistent with the idea of full compensation, for today both hospitals and doctors generally carry substantial liability insurance. See Pierce v. Yakima Vly. Mem. Hosp. Ass'n, 43 Wn.2d 162, 172, 260 P.2d 765 (1953) (hospitals carry substantial insurance). The question of control is normally for the jury, Kemalyan, 45 Wn.2d at 700, but as with all issues of fact, it can be disposed of on summary judgment when the evidence supports only one reasonable inference.

Kemalyan is not inconsistent with McCormick v. Jones, supra. Immediately before the language relied on by plaintiff, the McCormick court said that according to the testimony of several medical experts, there was no medical *365 purpose for the doctor to leave a foreign object in the patient's body. Thus, the doctor was directly hable for his own negligence. In contrast, the Kemalyan court was describing the doctor's vicarious hability for a nurse's negligence.

In the present case, the nurses were employed by the hospital rather than the defendant. The method by which they were to count sponges was estabhshed by the written pohcies of the hospital. There is no showing that the defendant gave any orders whatsoever concerning when or how to count the sponges. Rather, the muses made a routine count, and when it was done, they orally informed the defendant that it was correct. Without any direction from him, they also filled out their written nursing record to reflect that fact. In short, nothing suggests that the defendant had any reason to doubt the information that they gave him, that he had any reason to assume control over when or how they counted the sponges, or that he ever assumed such control in any way. This evidence is insufficient to support the inference of control needed for the captain of the ship doctrine, and defendant Anderson is not vicariously responsible for the negligence of the nurses.

Reversed with directions to dismiss the complaint against defendant Anderson.

Alexander, J., concurs.

Worswick, J. Pro Tern., concurs in the result.

Schindler, J.

— In this case, in response to the spouse’s concern that her husband’s death was imminent, the doctor allegedly told the patient and his family that the patient was not going to die within the year. Regardless of how this assurance by the doctor is interpreted, it is not a legally enforceable promise under RCW 7.70.030(2). A cause of action under RCW 7.70.030(2) requires an express undertaking or promise to obtain a specific result or cure through a procedure or a course of treatment. We reverse the trial court’s order granting summary judgment on liability and on remand direct entry of summary judgment in favor of Virginia Mason Medical Center (Virginia Mason) and Dr. Lynne Taylor.

FACTS

Kurt Hansen began experiencing symptoms of neurological dysfunction in the early 1990s. He met with Dr. Lynne *201Taylor, a neuro-oncologist at Virginia Mason Medical Center, for the first time in March 1993. Hansen had previously seen several physicians, including three neurologists, who had been unable to diagnose his condition.

Dr. Taylor saw Hansen three times between March and June of 1993. During the first visit, Dr. Taylor examined Hansen, reviewed his medical records and concluded it was “most likely” that Hansen suffered from multiple sclerosis.1 Dr. Taylor recommended further diagnostic tests. Hansen returned again in June to request a letter for his insurance company. Dr. Taylor again performed an examination and concluded that although the “diagnosis is still that of a demyelinating disease” a repeat MRI (magnetic resonance imaging) scan would be helpful.2 Hansen returned to review the results of the MRI, and Dr. Taylor recommended that he should be seen for a follow-up in six months.

Approximately two years later, in September 1995, Hansen returned to see Dr. Taylor. In the intervening period, Hansen had seen other neurologists who had been unable to reach a firm diagnosis of his illness. He saw Dr. Taylor periodically for six months between September 1995 and February 1996. In Dr. Taylor’s notes from Hansen’s visit in September 1995, she remarked that his condition had significantly deteriorated.3 Dr. Taylor characterized his illness as “multiple sclerosis with a chronic progressive course.”4 In her notes following an appointment in early January 1996, Dr. Taylor remarked that she had not reached a positive diagnosis, stating: “A bazaar [sic] variety of demyelinating disease is still felt to be possible, though certainly quite atypical.”5 During this six-month period, Hansen underwent further diagnostic testing and Dr. Taylor referred Hansen for an evaluation for a brain biopsy.

*202During the appointment on January 24, 1996, Dr. Taylor and the Hansens had a conversation which is the subject of this appeal. Kurt Hansen, his spouse Barbara, and their minor son were present. Barbara Hansen testified in her deposition that she was “distraught” during the visit and that she told Dr. Taylor that she was afraid her husband would die within the year.6 Although she cannot remember the exact wording, she recalls that Dr. Taylor said “he was not terminal within the next year.”7

Dr. Taylor’s chart notes for that day refer to this conversation:

His wife had thought perhaps he was terminal within the next year because of the location of his problems, and I have assured her today this does not seem to be the case.[8]

Taylor later explained:

I assured them that he had no diagnosis of a terminal illness that would lead me to believe that he would die within the next 12 months.[9]

I merely indicated to them that I had not arrived at a diagnosis that would lead me to believe that Mr. Hansen had a condition that would be fatal within the next twelve months. I never used the word ‘assurance’ or ‘promise’ or ‘guarantee’ during this conversation. When offering this opinion about his condition, I was not making any promise to the Hansens.[10]

In March of 1996, another physician performed a brain biopsy at Harborview Medical Center which revealed brainstem encephalitis, an inflammatory process.11 From that point, until his death in November of 1996, Hansen was treated by Dr. Alex Spence, a University of Washington neuro-oncologist.

*203Hansen died on November 10, 1996. The cause of death was determined through an autopsy to be complications arising from pilocytic astrocytoma of the brainstem (a tumor of the brainstem) and a demyelinating viral infection of the brain.12 None of Hansen’s physicians had made this diagnosis.

Hansen’s family members sued Virginia Mason and Dr. Taylor. They asserted claims of violation of the health care provider act, chapter 7.70 RCW, for missed diagnosis and breach of promise, negligent infliction of emotional distress, and violation of the Consumer Protection Act, chapter 19.86 RCW.13

Both parties moved for summary judgment on the breach of promise RCW 7.70.030(2) cause of action. The Hansens asked the court to rule, as a matter of law, that Dr. Taylor promised the Hansens that Kurt Hansen would not die within the year, that Dr. Taylor breached that promise, and the hospital was liable under RCW 7.70.030(2).14 Virginia Mason and Dr. Taylor (collectively “the hospital”) moved for summary judgment to dismiss this cause of action. The trial court granted the Hansens’ motion and denied the hospital’s motion.

The hospital appealed to this court and we granted discretionary review.15

DISCUSSION

This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court. Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000). Summary judgment is proper if the court, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party, finds no genuine issue as to any material *204fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Ellis, 142 Wn.2d at 458.

The Hansens’ cause of action is based on RCW 7.70.030 which sets forth the grounds on which a plaintiff may recover for injuries resulting from health care. RCW 7.70.030 provides, in pertinent part:

No award shall be made in any action or arbitration for damages for injury occurring as the result of health care ... unless the plaintiff establishes one or more of the following propositions:

(2) That a health care provider promised the patient or his representative that the injury suffered would not occur[.]

The hospital contends that the trial court erred by denying its motion for summary judgment because, under either party’s version of the facts, the statement made by Dr. Taylor does not constitute a promise within the meaning of RCW 7.70.030(2).

This is a case of first impression. There are no cases interpreting this statutory cause of action in the health care provider act enacted by the 1975-76 legislature. This court reviews the trial court’s interpretation of a statute de novo. Rettkowski v. Dep’t of Ecology, 128 Wn.2d 508, 515, 910 P.2d 462 (1996).

The legislative history provides no indication that the legislature intended to alter the scope of the preexisting common law cause of action. The only legislative history which specifically relates to the breach of promise claim is that the legislature considered and eventually rejected a proposal to require that a contract in the health care context be in writing.

The parties agree that the prestatute common law cause of action was based on contract liability. The parties also agree that the statute codifies the cause of action that existed at common law. The legislature is presumed to be aware of the common law, and a statute “will not be construed in derogation of the common law unless the *205legislature has clearly expressed that purpose.” Staats v. Brown, 139 Wn.2d 757, 766, 991 P.2d 615 (2000). It is necessary, therefore, to examine the nature of the common law cause of action as it existed prior to the enactment of the statute.

The first case to recognize a cause of action was Schuster v. Sutherland, 92 Wash. 135, 158 P. 730 (1916). In this case the court concluded that a physician entered into a verbal contract in which he “agreed to perform a surgical operation upon the respondent, and contracted, warranted and promised to remove all gallstones then in the body of the respondent.” Schuster, 92 Wash, at 136. The court held that the physician was liable for breach of contract because he did not remove the patient’s gallstones. The physician did not challenge the existence of a contract, but disputed the terms of the agreement.

In 1927, the Supreme Court decided Brooks v. Herd, 144 Wash. 173, 257 P. 238 (1927), involving a contract claim against a drugless healer. The court confirmed that the law was “well settled that a physician may contract specially to cure and is liable on his contract for failure.” Brooks, 144 Wash. at 176. However, the nature and existence of the contract in Brooks was a question of fact.

In Yeager v. Dunnavan, 26 Wn.2d 559, 174 P.2d 755 (1946), the court considered a case in which a physician allegedly promised to perform an eye operation which would correct a problem without damaging the patient’s health or eyesight. When the patient died due to an allergic reaction to the anesthetic used in the operation, the parents sued for breach of contract. The Supreme Court affirmed the trial court’s dismissal of the case reasoning that the “gravamen” of the case was tort rather than contract liability. Yeager, 26 Wn.2d at 562.

In Carney v. Lydon, 36 Wn.2d 878, 220 P.2d 894 (1950), the court considered a case against another drugless healer who had undertaken to cure a patient’s diabetes. On appeal, the court concluded that the trial court had been correct in ruling, as a matter of law, that there was no *206breach of contract claim. The court stated that “[t]he most that can be said on this subject is that [the practitioner] expressed the opinion that his method of treatment was designed to eliminate poison from the body and that should be followed by relief from the disease.” Carney, 36 Wn.2d at 880.

Finally, in 1958, the court decided Carpenter v. Moore, a case against a dentist who had agreed to make partial plates for the patient and “expressly guaranteed that all of the work would be done to [the plaintiff’s] satisfaction.” Carpenter v. Moore, 51 Wn.2d 795, 798, 322 P.2d 125 (1958). The court held that the evidence was sufficient to support a finding that the dentist had made and breached this contract, but because liability was contractual, the plaintiff could recover only the amount of consideration paid for the dentist’s work.

In his opinion concurring in part and dissenting in part, Justice Finley noted that the majority in Carpenter did not mention Yeager in its opinion and that the case was either “in effect overruled” or its authority was “greatly diminished” by Carpenter because Carpenter confirmed that “special contracts by medical practitioners to cure or obtain specific results” are enforceable. Carpenter, 51 Wn.2d at 804 (Finley, J., concurring in part and dissenting in part).

These common law cases demonstrate the existence of a contract cause of action when medical practitioners expressly promise to obtain a specific result or cure though a course of treatment or a procedure. The viability of the contract theory was briefly called into question in Yeager, but subsequently reaffirmed in Carpenter. But the cause of action as it existed was narrow; the health care provider had to expressly and specially contract and guarantee particular results. As indicated by the court in Carney, the existence of a contract will not be inferred *207where a practitioner merely offers an opinion regarding the effect of a course of treatment.16

Although the Hansens advance the dictionary definition of promise, we conclude that promise is a term of art in contract law. In contract law a promise is a “ ‘manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.’ ” McCormick v. Lake Wash. Sch. Dist., 99 Wn. App. 107, 117, 992 P.2d 511 (1999) (quoting Restatement (Second) of Contracts § 2 (1981)). A promise has also been defined as “ ‘an undertaking, however expressed, either that something shall happen, or that something shall not happen, in the future.’ ” Plumbing Shop, Inc. v. Pitts, 67 Wn.2d 514, 517, 408 P.2d 382 (1965) (quoting Restatement of Contracts § 2(1) (1932)). “A promise, in the sense of a commitment, must be distinguished from a description of a future event.” 25 David K. DeWolf & Keller W. Allen, Washington Practice: Contract Law and Practice § 1.2, at 3 (1998).

The statement at issue in this case is related to a diagnosis or prognosis and is not related to a specific undertaking or a specific result or cure through a course of treatment or a procedure. None of the common law cases recognize a claim based on a promise regarding a diagnosis or prognosis. Even in Carney, in which the court characterized the statement as an “opinion” and not a promise, the provider predicted the result of a particular course of treatment.

The hospital argues that the plaintiffs have not established a claim because they have offered no evidence of *208mutual assent, consideration, or forbearance.17 For malpractice and informed consent claims under the health care provider act, the legislature enacted additional sections which set forth the required elements of these claims. RCW 7.70.040, .050. Presumably, if it had meant to include mutual assent or consideration, the legislature would have similarly enacted an additional section containing these elements for a cause of action under RCW 7.70.030(2). Moreover, the prestatute common law cases require only the existence of a promise and breach of that promise and not mutual assent, consideration, or forbearance.

The Hansens contend that under any definition of promise, Dr. Taylor’s alleged statement is a promise. The Hansens rely on Dr. Taylor’s use of the word “assure” in her chart notes. According to Dr. Taylor, when Barbara Hansen asked if her husband was terminal within the next year because of the location of his problems, she “assured” the family that “it did not seem to be the case.”18 Viewing the facts in the light most favorable to the Hansens and assuming Dr. Taylor assured the family that Kurt Hansen was not terminal within the next year, Dr. Taylor did not commit through this assurance or undertake a specific result or cure through a course of treatment or a procedure. An assurance is not an undertaking or commitment to obtain a specific result.

Because we presume that the legislature intended to codify the common law, we conclude that an enforceable promise under RCW 7.70.030(2) must relate to the provision of specific medical services and the practitioner must expressly undertake or commit to obtain certain results or cure through a procedure or course of treatment. Here, under either version of the facts: whether Dr. Taylor told the family that Kurt Hansen would not die, or whether she *209assured them that it did not seem to be the case that he would die during the year, there is no evidence of a legally enforceable promise within the meaning of the statute. We reverse the trial court’s order granting summary judgment and on remand direct entry of summary judgment in favor of Virginia Mason and Dr. Taylor.

Coleman and Ellington, JJ., concur.

Review denied at 149 Wn.2d 1005 (2003).

CANE, C.J.

¶ 1. Jocko Zifferblatt, D.O.; Infinity Healthcare Physicians, S.C.; and Physicians Insurance Company of Wisconsin, Inc. (collectively the healthcare providers) appeal from a judgment of the circuit court, which ordered damages to David and Kim Zak. The *506 healthcare providers argue the trial court erred when it failed to provide a jury instruction and special verdict question on contributory negligence. They also argue the trial court improperly instructed the jury on causation. Because we hold that the trial court's instructions were not erroneous, we affirm.

¶ 2. The Zaks cross-appeal the judgment of the trial court that reduced the damages awarded pursuant to a statutory cap. The Zaks argue the statutory cap is unconstitutional. We agree and reverse and remand with instructions to reinstate the jury award. The Zaks also argue that a statute that requires payment of future medical expenses awarded to Zak be deposited in an account controlled by the Wisconsin Patients Compensation Fund (the Fund) is unconstitutional. We remand so the parties may comply with the proper procedures for this determination.

BACKGROUND

¶ 3. David Zak severely burned his right arm at work while repairing a car on April 27, 2000. At 1 a.m. on April 28, he awoke shaking with chills, and he took some over-the-counter medicine and went back to sleep. At 6 a.m., he awoke again with similar symptoms and sought medical attention at St. Vincent's Hospital in Green Bay. At the hospital, Zak was examined by physician's assistant Scott Perkl, and Dr. Jocko Ziffer-blatt. Zak's wound was treated, and blood was drawn for testing. Zak was discharged with instructions to contact a doctor if he had any new or severe symptoms.

¶ 4. Between 9:30 and 10 p.m. that night, St. Vincent telephoned Zak to tell him that his blood tests were abnormal, and he needed to return to the hospital. Zak was admitted to the hospital at approximately *507 midnight. It was later discovered that Zak was suffering from severe sepsis, a reaction to a bacterial infection. Due to the sepsis, Zak's bladder was destroyed, which was later reconstructed through surgery, and he suffered other severe medical problems.

¶ 5. The Zaks filed suit against the healthcare providers, claiming that Zak was negligently discharged from the hospital despite evidence of a life threatening infection. At trial, the healthcare providers argued that Zak's condition upon his arrival at the hospital was beyond reprieve, and the administration of antibiotics during Zak's initial visit would not have prevented or reduced Zak's injuries. None of the multiple experts testified that treatment after the initial discharge would have prevented or reduced Zak's injuries.

¶ 6. The healthcare providers contended that Zak's failure to quickly seek medical attention after he was notified of his abnormal blood test results and his failure to properly respond to new symptoms after his discharge contributed to his injury. However, the trial judge refused to instruct the jury to consider whether Zak's post-treatment conduct constituted contributory negligence. The court also did not include a contributory negligence question on the special verdict form. When the court instructed the jury, it gave the model jury instruction, which included the legal standard for causation in a medical malpractice case. The jury awarded the Zaks damages.

¶ 7. After the jury's verdict, all parties filed post-trial motions. The healthcare providers argued the court erred when it refused to give a contributory negligence instruction. They also claimed the wording of the causation standard in the jury instruction given was improper. Finally, they moved to reduce the amount of the noneconomic award made to the Zaks pursuant *508 to the statutory cap. The Zaks contended the statutory cap should not reduce the jury award, and the portion of the jury's award in excess of $100,000 for future medical and hospital expenses should not be paid into a medical expense fund as required by statute.

¶ 8. The court denied the healthcare providers' motions regarding the contributory negligence instruction and the causation issue, but reduced the award pursuant to the cap. It also rejected the Zaks' arguments regarding the statutory damage cap and the medical expense fund. After the court's rulings on the motions, judgment was entered.

DISCUSSION

I. The Healthcare Providers' Appeal

A. Jury Instruction on Contributory Negligence

¶ 9. The healthcare providers contend the trial court erred when it rejected their request that the special verdict contain a question regarding Zak's contributory negligence and an instruction on contributory negligence. A trial court has wide discretion in framing the special verdict, Runjo v. St. Paul Fire & Marine Ins. Co., 197 Wis. 2d 594, 602, 541 N.W.2d 173 (Ct. App. 1995), and determining what jury instructions to give. Anderson v. Alfa-Laval Agri, Inc., 209 Wis. 2d 337, 344, 564 N.W.2d 788 (Ct. App. 1997). However, both the special verdict and jury instructions given must fully and fairly inform the jury regarding the applicable principles of law. Runjo, 197 Wis. 2d at 602; Anderson, 209 Wis. 2d at 345. We review independently whether a jury instruction is appropriate under the specific facts *509 of a given case. Schwigel v. Kohlmann, 2005 WI App 44, ¶ 9, 280 Wis. 2d 193, 694 N.W.2d 467.

¶ 10. The healthcare providers argue they were entitled to a contributory negligence jury instruction under Brown v. Dibbell, 227 Wis. 2d 28, 595 N.W.2d 358 (1999). In Brown, we defined contributory negligence as "conduct by an injured party that falls below the standard to which a reasonably prudent person in that injured party's position should conform for his or her own protection and that is a legally contributing cause of the injured party's harm." Id. at 41. "Contributory negligence as a cause-in-fact of injury is judged by the same 'substantial factor' test as a defendant's negligence." Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 736, 275 N.W.2d 660 (1979). Under the substantial factor test:

A plaintiff in a negligence action carries a twofold burden of proving causation. First, the plaintiff has the burden of producing evidence, satisfactory to the judge, from which a jury could reasonably find a causal nexus between the negligent act and the resulting injury. If the plaintiff fails to meet this burden, the plaintiff has failed to establish a prima facie issue of causation and the defendant is entitled to a directed verdict. Second, if the plaintiff meets the burden of production and the causation question is submitted to the jury, the plaintiff has the burden of persuading the jury that the negligence in fact caused the injuries.

Fischer v. Ganju, 168 Wis. 2d 834, 857, 485 N.W.2d 10 (1992). In Connar v. West Shore Equip., 68 Wis. 2d 42, 45, 227 N.W.2d 660 (1975), the supreme court stated: "Only one question must be affirmatively answered by the trial judge before submitting a negligence question to the jury: Is there evidence of conduct *510 which, if believed by the jury, would constitute negligence on the part of the person or other legal entity inquired about." Thus, the healthcare providers assert, a contributory negligence instruction was warranted because a reasonable jury could find that Zak was contributorily negligent based on his conduct following his discharge.

¶ 11. We reject the healthcare providers' argument because no expert evidence was presented that any delay in Zak's return to the hospital contributed to his injury. The healthcare providers note that there was expert testimony that "hours are very crucial" when treating severe sepsis. However, the healthcare providers fail to acknowledge that this statement was in the context of the initial discharge. No expert evidence was presented that, had medical treatment been administered after his initial discharge, Zak's injuries would have been affected. Contributory negligence requires that Zak's conduct must be a "legally contributing cause" of his harm. Here, the healthcare providers failed to present expert evidence that there was a causal nexus between Zak's actions and his injuries. Thus, it was within the trial court's discretion to refuse to give the contributory negligence instruction to the jury.

¶ 12. The healthcare providers counter that requiring them to provide expert testimony on this issue is unsupported by Wisconsin law. Relying primarily on Ehlinger v. Sipes, 155 Wis. 2d 1, 454 N.W.2d 754 (1990), they contend there was sufficient evidence for the jury to conclude that Zak's conduct was a substantial factor contributing to his injury. In Ehlinger, the parents of premature twins who suffered birth defects brought a negligence claim against their doctors and others, arguing that failing to diagnose the multiple pregnancy *511 was a substantial factor in the twins' injuries. Id. at 5. Our supreme court held that an expert's testimony that an earlier diagnosis could have increased the chance of a full-term pregnancy was sufficient to meet the required burden of production for causation. See id. at 20-22. The court noted:

[T]o require a plaintiff in a case of this type to prove what more probably than not would have happened had the defendant not been negligent would require ... expert testimony by a physician speculating as to the success of a particular treatment, a fact which inherently is incapable of proof to a reasonable certainty.... [A]ll that is required is that the plaintiff establish that the proper treatment could have lessened or avoided the plaintiffs harm.

Id. at 19-22 (emphasis in original).

¶ 13. Here, the healthcare providers err with their suggested application of Ehlinger to these facts. They state that the contributory negligence instruction should have been given because, like the parents in Ehlinger, they have offered some evidence from which the jury could reasonably infer Zak's conduct was a substantial factor contributing to his injury. Again, the healthcare providers point to expert testimony that hours make a difference when dealing with severe sepsis, and again we note that testimony was in the context of the initial discharge, not the timing of Zak's return to the hospital. The healthcare providers failed to present evidence that Zak's alleged tardiness in seeking additional medical attention after he was initially discharged affected his injury.

B. Jury Instruction on Causation

¶ 14. The healthcare providers next contend the trial court improperly instructed the jury on causation. *512 The court instructed the jury on causation as follows:

A person's negligence is a cause of a plaintiffs injury if the negligence was a substantial factor in producing the present condition of the plaintiffs health. This question does not ask about the cause but rather a cause. The reason for this is that there can be more than one cause of an injury. The negligence of one or more persons can cause an injury or an injury can be the result of the natural progression of the condition ....

If you conclude from the evidence that the present condition of David Zak's health was caused jointly by either doctor's negligence and also the natural progression of David Zak's condition, then you should find that the doctors' negligence was a cause of David Zak's present condition of health.

Arguing that the term "substantial factor" in the jury instruction was ambiguous, the healthcare providers state, "This instruction allowed the jury to speculate that, even if Dr. Zifferblatt's negligence was less than a substantial cause of Mr. Zak's condition, the jury could find that the doctor caused the injury."

¶ 15. We disagree with the healthcare providers that the causation instruction was improper. First, the trial court's instruction uses equivalent language to the model jury instruction. WIJI — Civil 1023 (2004). While the healthcare providers correctly point out that the model jury instructions are not precedential authority, we give them their due weight as persuasive authority. See Runjo, 197 Wis. 2d at 604. Further, we simply do not think that substantial factor is a vague term. We are confident that a reasonable person would not understand substantial factor to mean that even if medical negligence was less than a substantial cause of Zak's *513 condition, the jury could find the doctor caused the injury. That is, a reasonable jury would not interpret "substantial factor" to mean "less than a substantial factor." Also, no Wisconsin case law has held that substantial factor must be defined in any greater detail than the model jury instruction. The meaning that the instruction communicates as a whole was a correct statement of the law.

II. The Zaks' Cross-appeal

A. Statutory Cap on Noneconomic Damages

¶ 16. The Zaks contend the trial court erred when it reduced the damages awarded pursuant to Wis. Stat. §§ 655.017 and 893.55(4). 1 The Zaks argue Wisconsin's medical malpractice statutory framework violates their constitutional rights. We review challenges to the constitutionality of a statute without deference to the decision of the circuit court. State v. Bertrand, 162 Wis. 2d 411, 415, 469 N.W.2d 873 (Ct. App. 1991).

¶ 17. After the trial court's judgment, this issue was directly addressed by our supreme court in Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440. In Ferdon, a minor, through the minor's guardian ad litem, brought a medical malpractice action against the minor's delivery doctor, hospital and the Wisconsin Patients Compensation Fund for injuries during birth resulting in the minor having a partially paralyzed and deformed right arm. Id., ¶ 2. After a jury awarded $700,000 in noneconomic damages for past and future *514 injuries and $403,000 for future medical expenses, the trial court reduced the award pursuant to the statutory cap. Id., ¶¶ 2, 4. In its opinion, the supreme court wrote, "We hold that the $350,000 cap (adjusted for inflation) on noneconomic medical malpractice damages set forth in Wis. Stat. §§ 655.017 and 893.55(4)(d) violates the equal protection guarantees of the Wisconsin Constitution." Id., ¶ 10. Applying Ferdon, the Zaks' constitutional rights were violated when the damages were reduced, and we reverse and remand for further proceedings consistent with our holding. 2

¶ 18. The healthcare providers argue that Ferdon should not be applied retroactively to this case. We reject that argument because the Zaks raised their constitutional challenge in the circuit court and preserved it for appellate review. See Olson v. Augsberger, 18 Wis. 2d 197, 201, 118 N.W.2d 194 (1962) (a judgment under attack at the time the controlling decision was rendered is entitled to receive the benefits of the new rule announced in the decision). We are bound by controlling precedent on an issue properly raised in this court. See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997).

B. Future Medical Expenses Fund

¶ 19. The Zaks also contend the provisions of Wis. Stat. § 655.015, which require that payment of future *515 medical expense payments awarded to Zak in excess of $100,000 be deposited in an account controlled by the Fund, are unconstitutional. Section 655.015 provides:

If a settlement or judgment under this chapter resulting from an act or omission that occurred on or after May 25, 1995, provides for future medical expense payments in excess of $100,000, that portion of future medical expense payments in excess of an amount equal to $100,000 plus an amount sufficient to pay the costs of collection attributable to the future medical expense payments, including attorney fees reduced to present value, shall be paid into the fund. The commissioner shall develop by rule a system for managing and disbursing those moneys through payments for these expenses, which shall include a provision for the creation of a separate accounting for each claimant's payments and for crediting each claimant's account with a proportionate share of any interest earned by the fund, based on that account's proportionate share of the fund. The commissioner shall promulgate a rule specifying the criteria that shall be used to determine the medical expenses related to the settlement or judgment, taking into consideration developments in the provision of health care. The payments shall be made under the system until either the account is exhausted or the patient dies.

Wisconsin Admin. Code § Ins 17.26 (Oct. 2005) designates proper administration of the accounts.

¶ 20. The healthcare providers contend that the Zaks' challenge to Wis. Stat. § 655.015 and its accompanying rule have been waived because the Zaks failed to follow the procedure for challenging an administrative rule set forth in Wis. Stat. § 227.40. The Fund contends that this court does not have jurisdiction to uphold the Zaks' challenge to the statute due to the Zaks' failure to follow the proper procedure. The Zaks *516 do not dispute that they failed to follow the proper procedure, but argue waiver on the part of the healthcare providers and the Fund when they did not raise this issue before the circuit court made its initial ruling. Again, we turn to Ferdon.

¶ 21. In Ferdon, the parties also challenged the constitutionality of Wis. Stat. § 655.015 and the administrative rule implementing it. Ferdon, 284 Wis. 2d 573, ¶ 12. And, like this case, the parties failed to adhere to the procedures set forth in Wis. Stat. § 227.40. Id. The court remanded the question to the circuit court for the parties to comply with § 227.40 and to address the validity of the administrative rule and the constitutionality of the statute and the rule. Id. In light of Ferdon, we do the same.

By the Court. — Judgment affirmed in part; reversed in part; and cause remanded with directions.

Gary D. Witt, Judge

Appellants George Fuller and Clara Fuller (collectively the "Fullers" and "George" and "Clara," respectively) appeal the judgment of the Circuit Court of Jackson County, Missouri. Fullers filed a petition against Ronald Partee ("Partee") and Byron Fox ("Fox") which alleged breach of contract, breach of fiduciary duty, and legal malpractice. Partee and Fox filed a motion to dismiss the action, which was granted by the trial court. The Fullers raise six points on appeal alleging error. We find that the circuit court erred in dismissing George's claim for breach of contract against Partee. We reverse and remand for further proceedings on this point. In all other respects we affirm.

Background1

George Fuller is currently incarcerated for murder and other related charges. He *867was convicted following a jury trial in 1990 and is serving a prison term of life without the possibility of parole. George's conviction was affirmed on direct appeal as were his pro se motions for post-conviction relief. State v. Fuller , 837 S.W.2d 304 (Mo. App. W.D. 1992) ; see Fuller v. State , 485 S.W.3d 768 (Mo. App. W.D. 2016). On December 12, 2010, George contracted with Partee for Partee to represent George in his appeal from the denial of his motion to reopen his Rule 29.15 proceeding. Pursuant to the terms of the contract, Partee specifically agreed to perform certain services including: (a) prepare and file appellate brief; (b) oral argument; and (c) reply brief "if we decide that one was necessary." George's sister, Clara, delivered to Partee the agreed upon attorney fee of $6,000 and Partee filed an Appellant's Brief appealing the motion court's judgment denying the motion to reopen his Rule 29.15 proceeding. The Fullers allege that once Partee received payment of the $6,000 retainer fee, he ceased communication with them.

This Court docketed the case for "no argument" and sent a letter to Partee instructing him that he had ten days within which to request the case be moved to the oral argument docket. Partee sent a letter to George acknowledging that George's case had been placed on the "no argument" docket and stated he would make inquiries as to why argument had not been scheduled. The Fullers attempted to contact Partee to instruct him that he could and should request oral argument. Partee did not timely request oral argument nor did he discuss this decision with George. This Court ultimately affirmed the judgment of the motion court. Fuller v. State , 361 S.W.3d 22 (Mo. App. W.D. 2011).

Following this court's decision on George's appeal, the Fullers brought suit against Partee. Ultimately, the Fullers jointly filed an Amended Petition2 asserting claims against Partee and Fox for breach of contract, breach of fiduciary duty, and legal malpractice. Both Partee and Fox filed separate Motions to Dismiss. The circuit court granted both motions. The Fullers appeal raising six claims of error.

Standard of Review

"We review de novo the grant of a motion to dismiss, examining the pleadings to determine whether they invoke principles of substantive law." Weems v. Montgomery , 126 S.W.3d 479, 483 (Mo. App. W.D. 2004) ; Lynch v. Lynch , 260 S.W.3d 834, 836 (Mo. banc 2008).

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all the plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or a cause that might be adopted in that case.

Prenger v. Boat Store, Inc. , 453 S.W.3d 381, 384-85 (Mo. App. S.D. 2015) (quoting Bosch v. St. Louis Healthcare Network , 41 S.W.3d 462, 463-64 (Mo. banc 2001)). "The *868pleadings are liberally construed and all alleged facts are accepted as true and construed in a light most favorable to the pleader." Weems , 126 S.W.3d at 483 (quoting Koger v. Hartford Life Ins. Co. , 28 S.W.3d 405, 410 (Mo. App. W.D. 2000) ).

Fox attached an affidavit to his motion to dismiss and the Fullers attached additional affidavits and documents in their suggestions in opposition to Partee and Fox's motions to dismiss. The Fullers requested that the court treat Fox's motion to dismiss as a motion for summary judgment. When the parties request the court to consider exhibits or matters outside of the pleadings in response to a motion to dismiss, the motion may be converted to a motion for summary judgment. Crest Constr. II, Inc. v. Hart, 487 S.W.3d 85, 89 (Mo. App. W.D. 2016). Because all parties attached affidavits and other documents to their motions on which they rely for some of their arguments and the Fullers specifically requested that the trial court treat the motion as one for summary judgment we will review it as a motion for summary judgment. "When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered." ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Co. , 854 S.W.2d 371, 376 (Mo. banc 1993). "Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. Thus, this Court may consider the affidavit of Fox when deciding whether claims against him should have been dismissed. See generally, Deeken v. City of St. Louis , 27 S.W.3d 868, 870 (Mo. App. E.D. 2000).

Discussion

I.

For clarity of discussion we address the points on appeal out of order. We begin with Point Relied On VI which alleges that the trial court erred in finding that there was no partnership between Partee and Fox.

The Fullers allege that Fox was law partners with Partee at the time Partee and George contracted for legal representation. Because of the partnership Fullers argue, Fox would have shared in any proceeds from the contract and should be liable for any damages. Although the Fullers further admit that they joined "Defendant Fox because they had no other means to recoup the damages they suffered as a result of the breach of contract." The circuit court found that the petition failed to properly plead facts to establish that a partnership existed between Partee and Fox. We agree.

According to an affidavit provided by Fox, he has not practiced law in fifteen years and has not occupied an office with Partee in as much time. The Fullers allege that they hired Partee to represent George because, after attempting to contact Fox, they were told by an unknown person that Fox no longer practiced law and were given the name of Partee. The alleged "referral" does not provide evidence of a partnership. If it is indicative of anything, it supports Fox's contention that he was not practicing law at the time George hired Partee and therefore could not have been in a legal partnership with Partee at the time of the contract. The only additional evidence that the Fullers have to suggest that Fox and Partee were partners is that Partee used letterhead titled "Fox & Partee." The letterhead, did not identify Fox as an attorney with the firm and the engagement letter was signed solely by Partee and made no mention of Fox. Additionally, directly below the firm name, it is clearly indicated that the letter is coming from "Ronald E. Partee, P.C." This is further support for the finding that Partee *869was practicing law as a professional corporation and not as a law partner with Fox. The Fullers' brief identifies no response to the lack of evidence supporting a partnership other than noting that Fox does not explain why old letterhead was used nor affirmatively show that he did not share in profits. This was not his burden. The Fullers needed to plead facts, not mere conclusions, establishing that Fox was in a legal partnership with Partee. Pulitzer Publ'g v. Transit Cas. Co. , 43 S.W.3d 293, 302 (Mo. banc 2001). The use of letterhead bearing the name "Fox & Partee" and the fact that many years before George retained Partee, Fox acted as Partee's business partner are not sufficient facts to survive a motion summary judgment. As such, the court did not err in dismissing Fox from the action in its entirety. Because we find no error in the dismissal of Fox, the remainder of our discussion shall be related solely to Partee.

II.

We next address the Fullers' claim that the court erred in finding that Clara was not a third-party beneficiary to the contract and thus had no standing to bring a claim against Partee.3 For ease of discussion, we also address the Fullers' claim argued throughout their brief that Clara otherwise had standing to bring claims for malpractice and breach of fiduciary duty.

First, it is clear that Clara cannot bring a claim for legal malpractice or breach of fiduciary duty.4 "[T]he existence of an attorney-client relationship between the plaintiff and the attorney" is a required element of any legal malpractice case. Rose v. Summers, Compton, Wells & Hamburg, P.C. , 887 S.W.2d 683, 686 (Mo. App. E.D. 1994). With limited exception,5 the attorney "owes no actionable duty to strangers or non-parties to the attorney-client relationship in the way legal responsibilities are performed." Fox v. White , 215 S.W.3d 257, 260 (Mo. App. W.D. 2007). The elements necessary to establish a claim of legal malpractice are: "(1) an attorney-client relationship; (2) negligence or breach of contract by the defendant; (3) proximate causation of plaintiff's damages; (4) damages to the plaintiff." Klemme , 941 S.W.2d at 495. In Fox , this court found that, although the defendant's stepfather paid attorney to represent his stepson in a criminal proceeding and stepfather would have "benefited" from his stepson's acquittal, stepfather could not bring a claim for malpractice because he had no attorney-client relationship with attorney. Fox , 215 S.W.3d at 261-62. "[T]he mere payment of fees, without more, is not proof of an agency relationship, much less an attorney-client relationship." Id. at 261.

The engagement letter sent by Partee to George forming the alleged contractual relationship was solely for the representation of George. George and Partee *870were the only signatories to the letter. George was the only one who was a party to the Rule 29.15 proceeding on which Partee was hired to work. Generally, an individual must be a party to a contract or a third-party beneficiary in order to have standing to enforce the agreement. General Motors Acceptance Corp. v. Windsor Grp., Inc. , 2 S.W.3d 836, 839 (Mo. App. E.D. 1999). "Only those third parties for whose primary benefit the contracting parties intended to make the contract may sue on the contract ... [and] the terms of the contract must clearly express an intent to benefit the third party." In re Scott , 913 S.W.2d 104, 105 (Mo. App. E.D. 1995). Like in Fox , a family member, Clara, paid the fee to Partee but the payment did not establish an attorney-client relationship with Clara. Although the freeing of her brother would have "benefited" Clara, the contract was for the representation of George and not intended to confer a benefit onto Clara. Thus, Clara is unable to maintain an action against Partee for any of the claims brought in the Petition.

The trial court did not err in finding Clara had no standing to bring the claims for breach of contract, malpractice, or breach of fiduciary relationship because she was not a party to the contract between Partee and George, was not a third party beneficiary to that contract, and neither did she have an attorney-client relationship with Partee. The remainder of this opinion shall thus be dedicated to the remaining claims of George against Partee.

III.

George's second and third points on appeal allege that the trial court erred in dismissing their claims for malpractice and breach of fiduciary duty.6

George's brief outlines the elements of breach of fiduciary duty and legal malpractice and alleges that George's petition fully set forth those elements. As previously stated, a plaintiff seeking to recover for legal malpractice must establish "(1) an attorney-client relationship; (2) negligence or breach of contract by the defendant; (3) proximate causation of plaintiff's damages; (4) damages to the plaintiff." Fox, at 260. "A breach of fiduciary obligation is constructive fraud." Klemme , 941 S.W.2d at 495. "Whether characterized as breach of fiduciary duty or constructive fraud, the elements of such a claim are: (1) an attorney-client relationship; (2) breach of a fiduciary obligation by the attorney; (3) proximate causation; (4) damages to the client; (5) no other recognized tort encompasses the facts alleged." Id. at 496. It is the second and fifth elements that distinguish a breach of fiduciary claim from a legal malpractice action. Id. It is a claim for constructive fraud rather than one of negligence. Id.

The brief, however, fails to address that, when the claims are asserted in the context of post-conviction relief, the petition must also allege that the plaintiff is actually innocent of the underlying crime charged. Kuehne v. Hogan , 321 S.W.3d 337 (Mo. App. W.D. 2010). In Kuehne , this Court, in part relying on the rational of other jurisdictions held:

We similarly find that the public policy concerns underlying the actual innocence requirement in the context of a malpractice suit against a criminal trial attorney apply equally to cases involving *871a criminal defendant's post-conviction counsel. Therefore, Kuehne's innocence of the criminal charges for which he was convicted is essential to satisfy the causation element of his claim. Although Kuehne asserted in his petition that he is an innocent man, his allegation is merely a bare conclusion without factual support. The fact of his guilt was previously determined when he was convicted of the criminal charges, and Kuehne is therefore barred from asserting a collateral civil claim where actual innocence is an essential element.

Kuehne , 321 S.W.3d at 342. The same result was reached in Costa v. Allen , 323 S.W.3d 383 (Mo. App. W.D. 2010). In Costa , the client sought to bring claims for breach of fiduciary duty and fraud against his post-conviction counsel. Id. at 384. Costa alleged that his counsel failed to follow Costa's instructions in securing the testimony of certain witnesses. Id. The court found that "despite Costa's use of the phrase 'breach of fiduciary duty' and 'constructive fraud,' [the case] is essentially a malpractice action that seeks to retry the criminal case, regardless of how the pleader wishes to describe the claim." Id. at 386. "The same public policy principles should apply whether the assertion is [ ]titled 'breach of fiduciary duty' or 'professional negligence.' To rule otherwise would be to undermine the state's interest in not allowing the guilty to escape punishment in that it would allow the actually guilty to transfer all or part of the punishment to another." Id. at 387. The court goes on to again find that, without a claim of actual innocence, a convicted criminal client cannot recover civil damages against his attorney.

We find that these cases fully dispose of George's claims for breach of fiduciary duty and malpractice. Both claims are civil claims that seek to obtain money damages against Partee for what are essentially malpractice claims. George does not attempt to distinguish this case law or otherwise argue it is inapplicable to this case. We therefore find that the circuit court did not err in dismissing George's claims for malpractice and breach of fiduciary duty against Partee.

IV.

Finally, George's first point on appeal alleges that the circuit court erred in granting Partee's motion because it was contrary to the law. Specifically, George argues that the circuit court failed to find that there was not a contract between George and Partee and the court further failed to find that George would be unable to demonstrate a breach of such a contract.

George's claim for breach of contract against Partee is that he failed to obtain oral argument in his case before this court. "A client may sue an attorney when the attorney fails to follow instructions or fails in the attorney's obligations as the client's agent. This action is for the attorney's breach of contract. It is not predicated on a lack of legal expertise. It is based on the law of contract and agency, not on negligence." 34 Mo. Prac. Personal Injury and Torts s. 11:10; See Jarnagin v. Terry, 807 S.W.2d 190 (Mo. App. W.D. 1991). "The essential elements of a breach of contract action include: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff." Martha's Hands, LLC v. Rothman , 328 S.W.3d 474, 479 (Mo. App. E.D. 2010).

The engagement letter outlining the terms of the agreement were included by the Fullers in their original petition. Additionally, in his own Motion to Dismiss, Partee admits that he entered into a contract with George for "among other things, *872all research and preparation of Mr. Fuller's Brief, and oral argument in the Western District." (emphasis added). It is undisputed that Clara delivered $6,000 to Partee on George's behalf, thus satisfying George's obligations under the contract. It is further undisputed that Partee did not request or present oral argument to this Court although oral argument was a service contracted for under the agreement and a request affirmed by the Fullers. Although George cannot obtain damages as a direct result of his crimes, as discussed fully above, we believe he can obtain damages for amount paid for a service that he did not receive.

Missouri has yet to address when a criminal defendant can obtain damages for a specifically contracted for service which was not rendered by his defense counsel under a claim for breach of contract. Other states have faced this question. In California, the court found that, as with a malpractice claim, a criminal defendant cannot bring a claim for breach of contract against their attorney unless they can show actual innocence. Lynch v. Warwick , 95 Cal. App. 4th 267, 275, 115 Cal.Rptr.2d 391 (Cal. Ct. App. 2002). We are, however, more persuaded by the dissenting opinion in Lynch . In Lynch , the convicted defendant in his breach of contract claim sought only to recover the money he had paid to retain counsel for services not rendered in the criminal matter. Id. at 277-78, 115 Cal.Rptr.2d 391. Thus the focus is not on the unfavorable outcome of trial but specifically for services contracted for but not rendered. Further, there are a number of policy reasons for not allowing a criminal defendant to recover for malpractice including: (1) not allowing a criminal to profit from his or her crime; (2) preventing the shifting of blame for guilt; (3) undermining the system of justice; and (4) avoiding a retrial of the case. Id. at 278, 115 Cal.Rptr.2d 391. Where the claim is solely for services contracted for but not rendered under a contractual breach, none of these policy concerns are at issue. See also, Owens v. Harrison , 120 Wash.App. 909, 86 P.3d 1266, 1269-70 (2004) (drawing a distinction between a breach of contract claim brought against an attorney for failure to perform any service, or failure to perform a "specific term of the contract" and a claim brought because defendant was dissatisfied with the outcome of the trial). But see, Van Polen v. Wisch , 23 S.W.3d 510, 515-16 (Tx. Ct. App. 2000) (finding that, just as with malpractice claims, criminal defendants cannot bring a claim for breach of contract against their attorney unless they can show actual innocence).

We hasten to note that this is an unusual case in which George had a contract clearly listing certain legal services that would be provided and has alleged that one of those services was not provided without his consent. This is not a generalized claim that his attorney breached his contract by providing unsatisfactory representation which is merely a legal malpractice claim repackaged. See generally , Gill v. Blau , 234 A.D.2d 506, 507, 651 N.Y.S.2d 182 (1996).7 Because George makes no claims of actual innocence, his damages are still limited to the recovery of any amounts paid for the specific services which were specifically contracted for but undelivered. We find that the trial court did err in granting Partee dismissal of George's claim for breach of contract.

Conclusion

For the reasons stated above we affirm the circuit court's dismissal of all claims *873brought by the Fullers against Fox, all claims brought by Clara against Partee, and the dismissal of George's claims for malpractice and breach of fiduciary duty against Partee. We, however, reverse the court's dismissal of George's claim against Partee for breach of contract and remand for further proceedings consistent with this opinion.

All concur

Pearson, J.

This case involves a legal malpractice claim against an attorney for failure to file timely a petition for review with this court of a Court of Appeals decision. The issues presented concern the proper standard for determining proximate cause in a legal malpractice action. The trial court concluded that proximate cause was a question for the jury and instructed the jury to decide whether the attorney's negligence was a substantial factor in causing the client's loss and whether the client lost a chance to recover. We hold this was error and reverse.

The underlying suit upon which this malpractice action is based arose out of a contract dispute between Black Mountain Development Company (developer) and Black Mountain Ranch (ranch). The ranch purchased a recreation complex built by the developer. Over a period of years a number of disputes arose about alleged deficiencies in the complex and its facilities and who should make the repairs. In an attempt to resolve these disputes, the parties signed an agreement purported to be a full and complete settlement of all disputes, past, present and future, between the ranch and the developer. Pursuant to this agreement the parties agreed to abide by the findings of an independent appraiser, the Anvil Corporation. Anvil completed the study called for in the agreement and concluded the problems were caused by a design defect. The developer disagreed with the findings and refused to correct the deficiencies. The ranch filed suit against the developer alleging breach of the settlement agreement.

Following trial the court concluded, contrary to Anvil's findings, that the deficiencies resulted from the ranch's negligent failure to maintain properly and adequately the facility so as to prevent deterioration. Thus, judgment was entered in favor of the developer. The ranch appealed and the Court of Appeals reversed based on a finding that *256 without a showing of fraud, mistake, or arbitrariness, the settlement agreement was binding and enforceable. Black Mt. Ranch v. Black Mt. Dev. Co., 29 Wn. App. 212, 627 P.2d 1006 (1981).

Immediately following the Court of Appeals decision, the developer instructed its attorney, John Pappas, to petition the Supreme Court for review. The petition was filed a day late and Pappas failed to follow the proper procedure for requesting an extension of time. Having lost any right to a further appeal, judgment was entered against the developer. Thereafter, the developer, through its trustee, Larry Daugert, brought suit against Pappas and his law firm for malpractice. The issues of duty and breach of duty were resolved on summary judgment. The only issue disputed at trial was whether Pappas' negligence was the proximate cause of the judgment being entered against the developer. At trial both parties presented expert testimony on the likelihood of review and reversal of the Court of Appeals decision by the Supreme Court. In addition the trial judge, believing that proximate cause was a jury question, instructed the jury that:

The Plaintiffs have the burden of proving the following:

1. That Defendants' malpractice proximately caused the loss of chance for Plaintiffs to avoid damage;

2. The percentage chance, if any, that the Supreme Court would have accepted review and reversed the decision of the Court of Appeals;

3. Whether the percentage chance, if any, for Plaintiffs to avoid damage that was lost by Defendants' malpractice was a substantial factor in bringing about damage to Plaintiffs.

This instruction apparently was based on this court's opinion in Herskovits v. Group Health Coop., 99 Wn.2d 609, 664 P.2d 474 (1983). Upon returning its verdict, the jury found there was a 20 percent chance the Supreme Court would have granted review and reversed. Hence, judgment *257 was entered against Pappas. 1 Pappas then sought review in the Court of Appeals. The case was transferred to this court.

The first question presented by this case is whether it is proper, in a legal malpractice action involving an attorney's failure to perfect an appeal, for the jury to decide the issue of proximate cause. Washington law recognizes two elements to proximate cause: cause in fact and legal causation. Hartley v. State, 103 Wn.2d 768, 698 P.2d 77 (1985). The instant case concerns only cause in fact; therefore, any use herein of the term proximate cause concerns only the question of cause in fact. Furthermore, any reference to questions of law bears no relation to the concept of legal causation.

In most instances the question of cause in fact is for the jury. It is only when the facts are undisputed and inferences therefrom are plain and incapable of reasonable doubt or difference of opinion that this court has held it becomes a question of law for the court. Petersen v. State, 100 Wn.2d 421, 436, 671 P.2d 230 (1983) (quoting Mathers v. Stephens, 22 Wn.2d 364, 156 P.2d 227 (1945)). The principles of proof and causation in a legal malpractice action usually do not differ from an ordinary negligence case. Ward v. Arnold, 52 Wn.2d 581, 584, 328 P.2d 164 (1958). For instance, when an attorney makes an error during a trial, the causation issue in the subsequent malpractice action is relatively straightforward. The trial court hearing the malpractice claim merely retries, or tries for the first time, the client's cause of action which the client asserts was lost or compromised by the attorney's negligence, and the trier of fact decides whether the client would have fared better but for such mishandling. See, e.g., Cline v. Watkins, 66 Cal. App. 3d 174, 135 Cal. Rptr. 838 (1977). In such a *258 case it is appropriate to allow the trier of fact to decide proximate cause. In effect the second trier of fact will be asked to decide what a reasonable jury or fact finder would have done but for the attorney's negligence. Thus, it is obvious that in most legal malpractice actions the jury should decide the issue of cause in fact.

In cases involving an attorney's alleged failure to perfect an appeal, however, the burden of proving causation takes on a different light. The cause in fact inquiry becomes whether the frustrated client would have been successful if the attorney had timely filed the appeal. Specifically, the client must show that an appellate court would have (1) granted review, and (2) rendered a judgment more favorable to the client. Not surprisingly, numerous other courts confronted with making this causation determination have not delegated it to the jury. Rather, they have consistently recognized that these latter two determinations are within the exclusive province of the court, not the jury, to decide. See, e.g., Chocktoot v. Smith, 280 Or. 567, 571 P.2d 1255 (1977); Hurd v. DiMento & Sullivan, 440 F.2d 1322 (1st Cir.), cert. denied, 404 U.S. 862, reh'g denied, 404 U.S. 961 (1971); Croce v. Sanchez, 256 Cal. App. 2d 680, 64 Cal. Rptr. 448 (1967), cert. denied, 391 U.S. 927 (1968); Chicago Red Top Cab Ass'n v. Gaines, 49 Ill. App. 3d 332, 364 N.E.2d 328 (1977); Cabot, Cabot & Forbes Co. v. Brian, Simon, Peragine, Smith & Redfearn, 568 F. Supp. 371 (E.D. La. 1983); Katsaris v. Scelsi, 115 Misc. 2d 115, 453 N.Y.S.2d 994 (1982).

The rationale for these decisions is clear. The overall inquiry is whether the client would have been successful if the attorney had timely filed the appeal. The determination of this issue would normally be within the sole province of the jury. Underlying the broad inquiry, however, are questions bearing legal analysis. The determination of whether review would have been granted and whether the client would have received a more favorable judgment depends on an analysis of the law and the Rules of Appellate Procedure. Clearly, a judge is in a much better position to make *259 these determinations. Thus, as two commentators have indicated:

This decision must be made by the trial judge as an issue of law, based upon review of the transcript and record of the underlying action, the argument of counsel and subject to the same rules of review as should have been applied by the appellate courts.

R. Mallen & V. Levit, Legal Malpractice § 583, at 738 (2d ed. 1981).

We believe the rule articulated above constitutes the proper procedure for determining cause in fact in a legal malpractice action involving an attorney's failure to file an appeal in a timely manner. Although some courts have expressed concern over the idea of a trial judge attempting to predict the outcome of an appellate case, see Better Homes, Inc. v. Rodgers, 195 F. Supp. 93, 95 (N.D. W. Va. 1961), the needs of both the client and the legal profession dictate adoption of the rule. On balance, the rule protects a client who is without fault from bearing the loss of an unappealed claim and prevents the jury from speculating over what an appellate court might have done by requiring the trial judge to make the determination by reviewing the record and applying the Rules of Appellate Procedure. Hence, we hold that the determination of what decision would have followed if the attorney had timely filed the petition for review is a question of law for the judge, irrespective of whether the facts are undisputed. Therefore, in the instant case the trial court erred in instructing the jury on proximate cause.

Notwithstanding our finding that it was procedural error for the jury rather than the judge to decide cause in fact, the question remains: What is the appropriate test for determining cause in fact for failure to file timely a petition for review in a legal malpractice action? The trial court determined that the proper test was whether the client lost a chance to reverse the judgment and whether the attorney's negligence was a substantial factor in causing the client's loss. Appellant argues that the proper test is whether *260 but for the attorney negligence the judgment would have been entered.

Traditionally, cause in fact has referred to the "but for" consequences of an act — the physical connection between an act and an injury. Hartley v. State, 103 Wn.2d at 778. The "but for" test requires a plaintiff to establish that the act complained of probably caused the subsequent disability. O'Donoghue v. Riggs, 73 Wn.2d 814, 824, 440 P.2d 823 (1968). Plaintiff's case must be based on more than just speculation and conjecture. Johanson v. King Cy., 7 Wn.2d 111, 122-23, 109 P.2d 307 (1941).

Courts have consistently applied the "but for" test in legal malpractice cases. See Note, The Standard of Proof of Causation in Legal Malpractice Cases, 63 Cornell L. Rev. 666 (1978). A majority of courts have therefore concluded that when an attorney is negligent in filing an appeal, the client bears the burden of proving that the underlying case would have been successful but for the negligence of the attorney. See D. Meiselman, Attorney Malpractice: Law and Procedure § 15:2 (1980).

Application of the "but for" test to legal malpractice claims has not, however, gone uncontested. See 63 Cornell L. Rev. at 666; Comment, Attorney Malpractice: Problems Associated With Failure-To-Appeal Cases, 31 Buffalo L. Rev. 583 (1982). Furthermore, this court recently reevaluated the "but for” test in reference to a medical malpractice claim. Herskovits v. Group Health Coop., 99 Wn.2d 609, 664 P.2d 474 (1983).

Herskovits involved a wrongful death claim against a doctor for the death of a cancer patient. Expert testimony given at trial indicated the doctor's failure to diagnose the disease at an earlier date reduced decedent's chances of survival from 39 percent to 25 percent. Under the traditional "but for" test, the plaintiff could not prove the doctor probably caused decedent's death since decedent more likely than not would have died anyway. Recognizing the harsh consequences of applying the "but for" test in the traditional manner, a majority of this court allowed the *261 question to go to a jury. Two Justices held that plaintiff need not show decedent would have had a 51 percent chance of survival if the hospital had not been negligent; rather, plaintiff need only show defendant's negligence was a substantial factor contributing to decedent's death. Her-skovits, at 619. In a concurring opinion four other Justices concluded the disability involved was not death but rather the loss of a chance to survive and, under traditional causation analysis, defendant probably caused this disability. Herskovits, at 634.

Despite the Herskovits opinion and the questioning by commentators of the use of the "but for" test in legal malpractice claims, we believe it inappropriate at this time to change the test. The primary thrust of Herskovits was that a doctor's misdiagnosis of cancer either deprives a decedent of a chance of surviving a potentially fatal condition or reduces that chance. A reduction in one's opportunity to recover (loss of chance) is a very real injury which requires compensation. On the other hand, where the issue is whether the Supreme Court would have accepted review and rendered a decision more favorable to the client, there is no lost chance. The client in a legal malpractice case can eventually have the case reviewed. For example, in the instant case the client's underlying claim was not reviewed by the court initially because of the attorney's negligence. However, in the subsequent malpractice action the trial judge should have decided whether the Supreme Court would have accepted review and held in favor of the client. If the trial judge found review would have been denied, the client could have sought review in the Court of Appeals and ultimately in the Supreme Court. Hence, the client would eventually regain the opportunity to have the claim reviewed by the Supreme Court. On the other hand, in the medical context, when a patient dies all chances of survival are lost. Furthermore, unlike the medical malpractice claim wherein a doctor's misdiagnosis of cancer causes a separate and distinguishable harm, i.e., diminished chance of survival, in a legal malpractice case there is no separate harm. *262 Rather, the attorney will be liable for all the client's damages if review would have been granted and a more favorable decision rendered, and none if review would have been denied. Thus, clearly the loss of chance analysis articulated in Herskouits is inapplicable in a legal malpractice case.

It is likewise inappropriate at this time to adopt the substantial factor test. See Baker v. Beal, 225 N.W.2d 106 (Iowa 1975); Winter v. Brown, 365 A.2d 381 (D.C. 1976). Such a change in the test for cause in fact is normally justified only when a plaintiff is unable to show that one event alone was the cause of the injury. As noted by Dean Prosser, the substantial factor test aids in the disposition of three types of cases. First, the test is used where either one of two causes would have produced the identical harm, thus making it impossible for plaintiff to prove the "but for" test. In such cases, it is quite clear that each cause has played so important a part in producing the result that responsibility should be imposed on it. Second, the test is used where a similar, but not identical, result would have followed without the defendant's act. Third, the test is used where one defendant has made a clearly proven but quite insignificant contribution to the result, as where he throws a lighted match into a forest fire. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 41 (5th ed. 1984).

In the instant case it is obvious that the two causes would not necessarily produce the identical harm. The client may have lost on appeal, thus showing that it was the weakness in the underlying claim rather than the attorney's negligence which caused the harm. This is also not a case where similar results would follow from either cause. Clearly, the weakness in the underlying claim could have prevented a better result even if the attorney had not been negligent. Finally, this case does not fall within the third category articulated by Prosser since the attorney has not made a clearly proven but quite insignificant contribution to the result. If review would have been granted and the Court of Appeals decision reversed, the negligence would *263 obviously have had a significant impact on the result. Clearly, this is not the type of case which necessitates the use of the substantial factor test. The better approach is to retain the "but for" test but emphasize, however, that this does not require a showing of certainty as suggested by other courts. See Coon v. Ginsberg, 32 Colo. App. 206, 509 P.2d 1293 (1973). Rather one must merely establish that the act complained of more likely than not caused the subsequent disability. O'Donoghue v. Riggs, supra.

In summary, we hold the client must prove that, but for the attorney's negligence, the plaintiff would probably have prevailed upon appeal in a legal malpractice action wherein the negligence occurs at the appellate level. Such a determination is for the trial judge, based upon a review of the transcript and record of the underlying action and subject to the same rules of review as would be applied by the appellate courts.

We turn now to the case at hand which has already been through the appellate process once. The client who may be without fault may or may not have suffered from the negligence of his attorney. Hence, rather than merely remanding the case for a determination of causation by the trial judge, we believe it appropriate in the interest of judicial economy and fairness to the client to permit the client to file a petition for review in this court pertaining to review of the original action. This court will then decide whether review would have been accepted and whether the client would have received a more favorable decision. Our determination will not, however, change the outcome of the underlying claim. Rather, it will decide the causation issue in the malpractice action. We note the client's attorney did not argue the "but for" theory at trial. An attorney's failure to argue a theory of the case at trial normally prohibits appellate review of such theory. However, the confusion over the "but for" standard prompted by the Herskovits decision predominates against dismissal. Rather than placing the burden of such confusion on the client, we believe it better to allow this court to review the underlying claim. We there *264 fore reverse the trial court and invite the client to submit his petition for review within 30 days of the filing of this opinion.