CYIL vol. 8 (2017)

TOMÁŠ HOLČAPEK CYIL 8 ȍ2017Ȏ Legal liability seeks to redress at least some of the injustice of a situation in which one person suffered harm because of another person who either breached some legal obligation (e.g. a lawyer represented his/her client with negligent incompetence) or is for another reason made legally responsible (e.g. an employer who is made legally liable for harm suffered in a work accident although no specific obligation was breached by anyone involved, because they may be better able to deal with the loss than an individual employee and benefit from the employee’s work). Across legal systems, certain common elements of liability, in one form or another, are often required in civil/private law. There needs to be some harm – because it makes little sense to try to repair injury when there was none. There needs to be some link between a particular person – typically his/her wrongful acts or omissions – and the ensuing harm, because otherwise it would not be fair to charge that person with obligation to remedy or compensate the harm. Ordinarily, this link is causation: acts or omissions of the particular person need to be a cause of the incurred harm. The link may also consist of something else, as is the case in the example of employer liable for consequences of a work accident happening during work for that particular employer, even if the employer’s conduct did not cause the event. As this paper focuses on medical malpractice, the harm which most readily comes to mind is death or a state of health worsened in comparison with the status quo ante , or perhaps even failure to improve health when it was reasonably expected to improve as a result of the treatment. 3 The causal link is usually sought between a physician’s (or institutional health care provider’s) act or omission which failed to comply with the due professional standard and such death or worsening or non-improving of health. However, what if the improper diagnosis or treatment can be linked with the worsening of the patient’s chances but not directly with the poorer state of health? Does this lost chance also represent harm as an element of liability? Let us assume that a patient who unknowingly has cancer comes to a physician with some symptoms of illness. Let us further assume that if the physician performs suitable tests, the disease will be properly diagnosed. The physician negligently fails to do so and, consequently, correct treatment is not started. Had it been commenced the patient would have had a 60% chance to survive. Because the doctor only discovers the true nature of the patient’s illness after some time, let us say after a year, the patient’s chances of long-term survival are now only 30%, i.e. seven in ten patients with cancer in such a phase will die shortly. Can we identify any harm or injury that could constitute one of the elements of liability? We do not know for certain that the doctor’s omission to administer correct procedures caused the tumour to proceed to another phase. 3 We can identify a kind of analogy between lost profit ( lucrum cessans ) and failure to receive the expected health benefit, so in principle, even such failure can constitute compensable harm. The facts of a case which ultimately reached the Constitutional Court of the Czech Republic (cf. its judgment of 9 January 2014, File No. III. ÚS 2253/13) provide an illustrative example: During an eye surgery on a patient with a cataract, a physician inserted an artificial lens of incorrect optical magnitude – one which resolved her cataract problem but did not remedy her strong short-sightedness. Objectively, her vision improved because before the surgery, she was nearly blind. Afterwards she could see, albeit not as well as she could have seen had the right lens been used. Lower courts found no liability of the health care provider as the cataract was successfully removed. However, the Constitutional Court handed down a judgment for the patient because lenses correcting short-sightedness are regularly used in this procedure and the patient was entitled to a reasonable expectation that her state of health would improve not just by removal of the cataract but also by correction of her short-sightedness.

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