CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

DOCTRINE OF LOSS OF CHANCE IN MEDICAL MALPRACTICE CASES …

2.2 European Comparison Other legal systems provide illustrative examples of the same tension between the two underlying concepts of loss of chance as the Czech cases mentioned above. A common important notion is that of probability. Both concepts utilise it – in the first it relates to the standard of proof in a dispute, in the other it is used to calculate the suffered harm. After all, probability is a notion with numerous different interpretations, depending on the circumstances. We can distinguish it as an ex ante increase in risk of harmful consequence, an ex - post -determined likelihood that a causal link existed, or a probability of evidence, i.e. how convincing particular pieces of evidence are. 13 The German approach views lost chance as an issue of uncertain causal link. It deals with it procedurally, i.e. on the basis of rules of evidence in a dispute. According to the main principle, 14 “the court is to decide, at its discretion and conviction, and taking account of the entire content of the hearings and the results obtained by evidence being taken, if any, whether an allegation as to fact is to be deemed true or untrue. The judgment is to set out the reasons informing the conviction of the judges.” The aim of the proceedings is to find the actual truth (or get as close to it as possible), not merely to find probability. A judge cannot refer to absolute certainty but needs to be satisfied with a degree of probability so high that no reasonable and experience person would doubt it – and this very high probability is actually nothing but practical certainty (as opposed to absolute certainty, which would be unfeasible). 15 What can help to achieve this very demanding standard in practice is the potential application of certain presumptions developed by case law, in some circumstances reversing the burden of proof. 16 In Switzerland , the required standard of proof regarding causation is mere balance of probabilities, not practical certainty like in Germany. The highest judicial body, the Federal Court, had an opportunity to rule on the issue of lost chance in the medical context in 2007. 17 The facts of the case were as follows: At night, a patient came to a local hospital emergency department with strong, sharp pain in the head, nausea, vomiting, fever and several other symptoms. He was not properly checked and a doctor concluded that he suffered from flu. The patient left the hospital only to be brought back several hours later in a very bad condition. Pneumococcal meningitis was diagnosed and treatment with massive doses of antibiotics started. The patient’s life was saved but he suffered permanent total loss of hearing in both ears. During the subsequent lawsuit, malpractice in the first examination of the patient was clearly proved. But the experts could not determine at all whether an earlier start of the therapy (by 4 or 5 hours) would have prevented the harm. Causation was not proved 13 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. 17 ff. 14 Expressed in sec. 286(1) of the German Code of Civil Procedure ( Zivilprozessordnung ). 15 GREGER, Reinhard, Hodnocení důkazů a míra důkazů [ Evaluation of Evidence and Standard of Proof ]. In: TICHÝ, Luboš, HRÁDEK, Jiří, Prokazování příčinné souvislosti multikauzálních škod [ Proving Causality of Multicausal Damage ] . Univerzita Karlova v Praze – Právnická fakulta, 2010, pp. 70-71. 16 E.g. prima facie ( Anscheinsbeweis ), rebuttable presumption of causality in case of a grave error etc. Cf. HOLČAPEK, Tomáš, Dokazování v medicínskoprávních sporech [Evidence in Disputes Arising from Medical Care]. Wolters Kluwer, Praha 2011, pp. 152-163. 17 Judgement of the Federal Court of Switzerland of 13 June 2007, File No. 4A_61/2007, published in BGE 133 III 462.

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