CYIL vol. 8 (2017)

TOMÁŠ HOLČAPEK CYIL 8 ȍ2017Ȏ recovers anyway? What is then his or her injury? 42 In Gregg v. Scott , the patient’s lost chance was calculated from statistics of ten-year survival. By the time the House of Lords decided his case, he had already lived for more than nine years since the event which formed the basis of his claim. Or in another variation of this scenario, why should we calculate the likelihood that the patient’s leg will need to be amputated and compute compensation accordingly, if the patient does not lose the limb in the end? From the perspective of human rights protection, “fair compensation” should probably be interpreted as meaningful remedy, as compensation which would ordinarily be felt as just and justified. Clearly, this allows for a multitude of approaches, but we could argue that it could disallow such approaches which would set so high demands on the claiming patient that he or she would almost never be able to make their case in court. In other words, it does not seem that the principles of the Convention on Human Rights and Biomedicine and other international human rights treaties prescribe recognition of loss of chance as harm in itself. After all, it is a controversial concept with advantages and disadvantages and as national case law quoted above shows, it is not universally accepted. But even if it is treated as a mere label for uncertainty of causal link between wrongful act or omission and harm, the law should provide for other methods of alleviation of the patient’s burden of proof. Whether it is done by substantive law, e.g. by stipulating rebuttable presumptions in the patient’s favour in some circumstances, or whether the same objective is achieved by procedural law – e.g. by lowering the standard of proof well below the level of certainty, there should be a lawful way to award compensation in deserving cases and so make the practical operation of the law conform to the general notions of justice and fairness. Otherwise the law could well be found in contravention of international rules protecting human rights of the patients. Conclusion We have tried to offer a brief overview of the concept of loss of chance in medical malpractice litigation. Without focusing on details of arguments in favour or against the adoption of it in national law, two basic ways of understanding it were put forward: either treating it as a separate kind of compensable damage or considering it just a shorthand for inability to prove an element of liability – especially causation – with the level of persuasiveness required by a particular legal system. Selected cases from several European countries which discussed the (potential) application of loss of chance or otherwise dealt with unclear causation were mentioned. We could see that courts in various countries have not come to the same conclusions as regards the interpretation and utilisation of loss of chance. Whenever an international element is present, a question of conflict of laws may arise. As the notion of loss of chance can be interpreted both as a substantive law issue and a procedural one (more specifically, related to evaluation of evidence), there is scope for debate about proper characterisation of the issue – and consequently, for controversies whether lex fori or lex causae (or for that matter, any other legal system) should govern the determination of the case. If the various legal systems in consideration do not take the same approach to loss of chance, application of one over another may have broad implications for the outcome of the case. 42 Leaving aside harm in the form of additional stress, pain etc. which are surely compensable – but not as a matter of loss of chance.

456