CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ DOCTRINE OF LOSS OF CHANCE IN MEDICAL MALPRACTICE CASES … to exclude some types of damage which may be inherent in the therapeutic intervention (e.g. amputation of a gangrenous limb). It could be debatable whether such medically justified intervention actually causes any real damage at all, but the word “undue” is meant to prevent any doubt in this respect. The explanatory report elaborates that the right to compensation should be based on several elements – act or omission which can be considered a (medical) intervention in the widest sense and which caused the undue damage. This would not be enough to establish civil liability in most countries, as it would usually also be necessary to consider whether the intervention was carried out correctly or not, but the explanatory report acknowledges that national legal systems may set up different systems of liability (e.g. based on fault, notion of risk, strict liability or collective compensation systems) and does not attempt to prefer one over another. The same consideration applies to the words “fair compensation” – again, it might be highly debatable what constitutes fair compensation in particular circumstances. Protection under both Conventions is to be ensured without discrimination. 40 While it might seem somewhat surprising at first sight, the question of (non-)discrimination may be relevant in the context of civil liability for medical malpractice. For example, both awarding and denying compensation to a child in a wrongful birth case could in some circumstances constitute discrimination against the child and serious arguments may be raised both in favour and against both options. 41 We must therefore consider whether national law which accepts or rejects the doctrine of loss of chance in cases of medical malpractices as a distinct type of compensable injury could be held incompatible with the international principles of protection of individual rights. There is little problem in situations in which the traditional elements of liability, i.e. wrongful act or omission, personal injury of the patient and causal link between them, can be proved with sufficient certainty. But what if the patient or his or her relatives can unambiguously prove that the health care was substandard, they can prove that the patient suffered significant harm but are unable to prove causation because the harm could have ensued anyway (even with proper care) either due to other operating factors or simply due to natural progression of a disease. Are they entitled to fair compensation pursuant to Article 24 of the Convention on Human Rights and Biomedicine or similar principles? Or can the health care provider benefit from the uncertainty of causation although they could have been the cause of the injury and they demonstrably acted against the law (and often also against a contract) by failing to provide proper care? Numerous arguments both in favour and against the doctrine of loss of chance in medical cases can be offered and many of them have been thoroughly discussed, e.g. in the already cited English case of Gregg v. Scott . We have mentioned one argument in favour – i.e. that wrongful conduct on the part of the health care provider which made or could have made the patient’s situation worse should not go without any consequence. On the other hand, let us imagine a patient whose chances deteriorated, e.g. as a result of failure to timely diagnose cancer and commence therapy. What if he or she, although the prospects are now worse, 40 Cf. Article 14 of the European Convention on Human Rights, Article 1 of Protocol No. 12 to the same Convention or Article 1 of the European Convention on Human Rights and Biomedicine. 41 ŠUSTEK, Petr, ŠOLC, Martin, Court Decisions in Wrongful Birth Cases as Possible Discrimination against the Child. Espaço Jurídico Journal of Law (2017, Vol. 18, No. 1), pp. 37-45.

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