CYIL vol. 8 (2017)

TOMÁŠ HOLČAPEK CYIL 8 ȍ2017Ȏ strict rule was applied in medical malpractice just like in any other field of civil liability. Lost chance was not being mentioned as a separate type of harm. In 2008, the Constitutional Court called for re-evaluation of this rigid rule. Although the ratio decidendi of the actual case 8 was not based on the doctrine of lost chance, the court noted as obiter dictum that the requirement to prove causal link with 100% certainty could not be inflexible and was in fact unrealistic. “To find a simple relationship of cause and consequence in medical procedures is by definition very hard. The essence of medicine is to intervene in the whole chain of causes and consequences, in processes taking place in the human body, and to affect these processes by external interference, change their direction, impact etc. … Even in the case of an active act of a physician who selected a particular treatment it is very difficult, and even unfeasible, to determine whether such treatment was beyond all reasonable doubt the sole possible cause of the ensuing harm. It is yet more difficult in the case of an omission, when a physician does not carry out a treatment which could and should have been chosen on the basis of state-of-the-art medical knowledge.” 9 The court did not establish any new rule but rather suggested that courts were not strictly bound by the traditional case law and might develop a new approach. Several years later, another case of alleged medical malpractice reached the Supreme Court. 10 It concerned obstetrics, which is unfortunately a fertile source of civil liability disputes. In the course of a rather normal birth an amniotic fluid embolism occurred, leading to death of the patient. This rare complication is dangerous and even with the best care has a high mortality rate (determined in the particular case by the experts at about 80 %). However, the actual provided care was seriously substandard. Because of that, the patient lost a 20% chance of survival. Both the court of first instance and the appellate court held that there is no sufficient base for liability as the causal link between defective care and death of the patient could not be shown with at least 50% probability. 11 The Supreme Court denied review of the case and noted that loss of chance is an issue of causal link and does not constitute harm in itself. Between the two competing concepts presented above, it clearly preferred the one in which the chance merely describes uncertainty of causation between malpractice and injury. In December 2016, the Constitutional Court quashed the decision of the Supreme Court on procedural grounds as unconstitutional. 12 According to the Constitutional Court, the Supreme Court did not properly consider whether causation must be proved with certainty or on the balance of probabilities or whether an even lower standard of proof could be acceptable in medical cases, and its reasoning was found too short and insufficient. The case was remanded back to the Supreme Court for a new decision, without explicit guidance on how it should be resolved on the merits. Therefore the situation at the moment appears rather dynamic. We will see whether the courts maintain the traditional understanding of the notion of lost chance as an issue of uncertain causation, or whether they adopt a new understanding of lost chance as a compensable injury in itself. 8 Ruling of the Constitutional Court of the Czech Republic of 12 August 2008, File No. I. ÚS 1919/08. 9 Ibid. 10 Ruling of the Supreme Court of the Czech Republic of 30 July 2013, File No. 30 Cdo 3377/2011. 11 It is quite interesting that the courts based their decision on the standard of proof of balance of probabilities, given that pursuant to traditional case law, they should have required proof with practical certainty – leading nevertheless to the same outcome. 12 Judgement of the Constitutional Court of the Czech Republic of 20 December 2016, File No. III. ÚS 3067/13.

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