CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ DOCTRINE OF LOSS OF CHANCE IN MEDICAL MALPRACTICE CASES … In this article, we will try to approach the issue from various angles, without the unrealistic ambition of completely exhausting the topic. Within the comparative context, we will look at examples from several countries and their case law. Both in the Czech Republic and elsewhere, loss of chance has been considered in judgments of the highest courts, in the Czech example by the Supreme Court and the Constitutional Court, in France by the Cassation Court, in the United Kingdom by the House of Lords as predecessor of the contemporary Supreme Court, and in Switzerland by the Federal Court etc. On the international level, we will discuss loss of chance as a complex notion which may encompass both an element of legal liability and a procedural rule lightening the burden of proof in complicated cases. In cross-border care, both in the European Union and outside it, a question may arise whether the doctrine of loss of chance may be applied to a particular case in which the patient suffers personal injury. Finally, we will analyse some transnational aspects of loss of chance in connection to the international protection of human rights and consequences following from it for compensation in medical malpractice cases. However, before we proceed to the various described aspects of the doctrine of loss of chance, we should first explicate it and present its potential utilisation in civil (or: private) law disputes related to liability for medical malpractice. It is to this underlying concept to which we will now turn. What is the Lost Chance? The whole human life comprises many utilised, and even more missed, chances and opportunities. Similarly, our lives are fraught with many risks, of which, fortunately, only a fraction materialise, though sometimes with fatal consequences. Even without diving into the intricacies of human psychology, we may rather safely assert that our minds are capable of filtering most of them out of our consideration. Otherwise, we would spend most of our time weighing options and protecting from hazards, rendering ourselves nearly unable to actually live. Life in an environment full of many other people, products of their activity (machines, emissions, virtual products, companies etc. – the list is nearly infinite) and natural factors is a very complex phenomenon. Actions or omissions of one person can lead to the benefit or detriment of others. But the same waxing and waning of individual fortunes may be also caused by other, independent factors, internal (e.g. deterioration of health due to advanced age) or external (e.g. natural disaster), or a combination of more than one of these causes. In a sense, each loss contains a missed opportunity – a chance – of a better outcome. However, for legal purposes we need to work with narrower, and more precise, concepts. v medicínskoprávních sporech [ Evidence in Disputes Arising from Medical Care ]. Wolters Kluwer, Praha 2011, pp. 166-179; DOLEŽAL, Adam, DOLEŽAL, Tomáš, Problematika prokazování příčinné souvislosti v medicínsko-právních sporech [ Issues of Proving Causality in Medico-legal Disputes ]. Právník . (2013, Vol. 152, No. 6), pp. 581-583; TICHÝ, Luboš, K otázce příčinné souvislosti a proporcionální odpovědnosti za škodu: Na okraj rozhodnutí Sienkiewicz v. Greif a Knowsley v. Willmore [ To the Question of Causality and Proportional Liability for Damage: On the Margin of Decisions in Sienkiewicz v. Greif and Knowsley v. Willmore ]. Jurisprudence. (2013, No. 5), pp. 15ff; HOLČAPEK, Tomáš, Občanskoprávní odpovědnost v medicíně a její uplatňování u českých soudů [ Civil Liability in Medicine and its Application by Czech Courts ]. Právní rozhledy. (2016, Vol. 24, No. 9), p. 309. 1.

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