CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ DOCTRINE OF LOSS OF CHANCE IN MEDICAL MALPRACTICE CASES … outside the scope of any agreement. 31 European law provides for rules of determination of such governing law by means of Rome II regulation. 32 Under the general rule of Article 4(1) of the regulation, the law of the country in which the damage occurs should be applicable and therefore, compensation for the lost chance might be claimed, even though such claims have so far not succeeded in the Czech Republic as the presumed place of habitual residence of the claimant. We can see that different understandings of the notion of loss of chance may directly influence legal consequences of medical malpractice in cases which in some sense traverse national borders. With the expected increase in cross-border healthcare in the EU, this influence may be felt in more and more cases and give rise to calls for some kind of harmonisation of rules of liability. Whether it is desirable, is obviously an entirely different question. 3.2 Transcending the European Union In medical practice which for some reason transcends the European Union, a vast array of potential cases and combination of elements arises. It is not the purpose of this article to delve into them in any detail. But what is important to emphasise is that in connection with the notion of loss of chance, its understanding either as a distinct type of claim or merely as a description of uncertainty of causation to be dealt with by applicable rules of evidence may significantly impact the outcome of particular malpractice litigation. Let us suppose that the adjudication of a concrete dispute would be performed by a court in a country which does not recognise claims for compensation of lost chance but treats these cases as a matter of evaluation of evidence, especially regarding causal link between the breach of obligations and death or worsened state of health of the patient. Let us further assume that the medical care in question was provided on the basis of a contract and that for some reason the contract is governed by the law of another country – one which does allow claiming compensation for loss of chance. Without an explicit legal provision similar to those set forth by Article 18(1) of Rome I regulation and Article 22(1) of Rome II regulation, there could be a clear clash of principles: by applying the substantive law of the case, the claim based on loss of chance could succeed. By applying the lex fori – which is traditionally considered to govern, inter alia , the rules of evidence 33 – to the evaluation of the available evidence, the court might well come to the conclusion that the elements of liability were not proved sufficiently, particularly if the procedural rules of the country in which the court sits require proof with practical certainty. Regardless of how this conflict would be in the end decided in the actual case, it is apparent that labelling the lost chance as an issue of substantive law (i.e. harm in itself ) or of procedural law (uncertainty of causation on the basis of available evidence) may affect how the court will adjudicate on the merits of the claim.

31 Presuming for simplicity that a French court, if seised of the matter, would consider such legal relationship a matter of private and not public law – which might not be the case. 32 Regulation of the European Parliament and of the Council (EC) No. 864/2007 on the law applicable to non-contractual obligations. 33 Cf. VON BAR, Christian, et al., Non-Contractual Liability Arising out of Damage Caused to Another . Oxford University Press, Oxford 2009, p. 260.

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