CYIL vol. 8 (2017)

TOMÁŠ HOLČAPEK CYIL 8 ȍ2017Ȏ at least on the balance of probabilities. The Federal Court held that lost chance in itself was not a compensable injury in Swiss law and accordingly, the claim did not succeed. As an interesting side note it may be pointed out that Swiss (and other countries’) courts approach similar issues differently in cases of other professional malpractice, such as by lawyers. 18 A 2005 English case of Gregg v. Scott 19 stems from a common law jurisdiction which requires all elements of liability to be proved merely on the balance of probabilities. The House of Lords was called upon to decide whether the legally relevant injury is solely a worsened state of health, or whether it may also include decreased prospects of healing. The facts concerned an error in diagnosis of an actual non-Hodgkin lymphoma, mistaken for a benign lipoma. Adequate treatment was delayed by nine months and statistical chances of the patient for ten-year survival without relapse of the illness fell from an estimated 42% to an estimated 25%. The patient underwent strenuous therapy and suffered from repeated new occurrences of the disease. By a tight vote of 3:2, the House of Lords did not sustain the patient’s claim, arguing, inter alia , that in the interest of internal coherence of the law, the courts should not deviate from the standard of proof of balance of probabilities – and, in this case, there was no sufficient proof of causation between the diagnostic error and later development of the illness because the patient’s prospects were unfavourable even at the time of the error. The French law differs from the examples set out above in the sense that it accepts lost chance as a distinct type of compensable civil harm under the condition that it was real, not just theoretical and highly improbable. The compensation is calculated on the basis of the lost chance and seriousness of the ensuing consequence. However, the reasoning given in the relevant case law 20 tends to be rather brief. The principles of evidence require any fact to be proved with certainty, and the concept of loss of chance may be applied in order to circumvent this rather strict requirement and ease the burden of claimants attempting to obtain compensation for their hardship. Nevertheless, French law offers the most relevant example of practical application of the understanding of loss of chance in medical cases as a separate civil wrong, in the elements of which the causal link with the actual worse state of health are replaced by causal link between the wrongful act or omission on the one hand, and the deteriorated prospects on the other. Loss of Chance across Borders Adoption of a particular concept of loss of chance in medical malpractice by courts can significantly influence the outcome of an individual dispute. But the issue has greater than just domestic impact. Whenever a legal relationship crosses national borders, national rules may compete to determine its resolution and principles dealing with conflict of laws may come into play. 3. 18 For an overview of case law cf. KADNER GRAZIANO, Thomas, The “Loss of a Chance” in European Private Law: “All or nothing” or partial compensation in cases of uncertainty of causation. In: TICHÝ, Luboš (ed.), Causation in Law . Univerzita Karlova v Praze – Právnická fakulta, Praha 2007, pp. 125-127. 19 Gregg v. Scott [2005] UKHL 2. 20 Cf. e.g. the judgments of the Cassation Court ( Cour de Cassation ) of 8 July 1997 (Civ. 1, No. 95-17.076), 18 July 2000 (Civ. 1, No. 99-12.135), 21 November 2006 (Civ. 1, No. 05-15.674) or 4 June 2007 (Civ. 1, No. 05-20.213).

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