CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ DOCTRINE OF LOSS OF CHANCE IN MEDICAL MALPRACTICE CASES … We do not know whether this particular patient will die soon or live for many years. All we know is that his or her prospects are now statistically worse – with emphasis on the adjective as we cannot be sure how the life and health of this particular person would have developed. 4 The medical field is not the only context in which this type of question arises. Similar considerations come into play in the case of a lawyer whose professional misconduct causes the client’s prospect in a lawsuit to deteriorate. It might have never been sure whether the client’s case would prevail, but because of the lawyer failing to designate a witness or produce an evidentiary document in time, the chances are now slimmer. Another, but again similar type of case, is a competition in which a contestant loses a chance to win the prize due to fault on the part of the organizer or a third person. 5 To view the lost hope for a better outcome as legally compensable harm is, however, not the only possible option. An alternative approach to the same reality views the lost chance merely as a description of uncertain causal link between the reproachable act or omission and the actual harm reflected in life, health or property of the injured party. In other words, when the lawyer failed to introduce an important witness, it could have been the cause of the subsequent loss of the claim, but to establish legal liability, such a link must be proved with the level of certainty required by the relevant legal system. 6 When the doctor negligently failed to discover a malignant tumour in time, he or she could have prevented successful therapy, leading to the patient’s demise, but perhaps the cancer would have progressed anyway. The patient can get better even if the chance is slim – and can get worse even if the prospects were good. We can see that there is no singularly correct definition of lost chance. As the examples in the following text show, the outcome of individual cases may well depend on the understanding of lost chance adopted by the particular legal system or court which is charged to decide the case. Examples from National Case Law Let us now present several examples of discussion of loss of chance doctrine in national case law. We will commence with Czech law and then seek to put it into international perspective by outlining the approaches taken by other legal systems. 2.1 Czech Republic Czech law used to be fairly conservative in adjudication of cases in which there is uncertainty about fulfilment of the elements of liability. Traditionally, the standard of proof in civil cases was certainty or “practical certainty”, i.e. a rather demanding burden. 7 This 4 The offered example is similar to the facts of the actual English case Gregg v. Scott [2005] UKHL 2 discussed below. 5 Cf. DOLEŽAL, Tomáš, DOLEŽAL, Adam, Problematika využití teorie ztráty šancí [ Issues of Utilisation of Theory of Loss of Chance ]. Časopis zdravotnického práva a bioetiky. (2017, Vol. 7, No. 1), p. 48, and additional sources quoted there. 6 E.g. on the balance of probabilities (typical for common law countries), with practical certainty or on any other particular standard of proof set by the applicable law. 7 In its judgement of 27 September 1990, File No. 1 Cz 59/90, the Supreme Court speaks about the necessity of proving the alleged facts “safely” and expressly notes that mere probability is not sufficient. Jurisprudence reached similar conclusions, cf. e.g. MACUR, Josef, Důkazní břemeno a teorie o uplatňování pravděpodobnosti při hodnocení důkazů v civilním soudním řízení [ Burden of Proof and Theories on Application of Probability in Evaluation of Evidence in Civil Litigation ]. Právník . (1995, Vol. 134, No. 4), pp. 365-366. 2.

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