CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ DOCTRINE OF LOSS OF CHANCE IN MEDICAL MALPRACTICE CASES … With the expected growth in cross-border healthcare, disputes in this regard may become more frequent. From the point of view of international protection of human rights, there is no concrete prescription that national law should accept the concept of loss of chance in medical cases as a distinct compensable harm. Nevertheless, international human rights treaties expect the contracting states to provide satisfactory effect to the treaties’ provisions. 43 Therefore, if national law does not allow to claim for lost chance – and it may have some convincing reasons for such an approach – it should provide for other ways of alleviation of the patient’s burden of proof in suitable cases (e.g. reversal of burden of proof by virtue of rebuttable presumptions, lower standard of proof etc.), otherwise civil liability in medical cases could often end up as a hollowed-out concept, failing to ensure satisfactory operation in day-to-day practice.

43 Cf. the abovementioned obligation to ensure “fair compensation” under Article 24 of the Convention on Human Rights and Biomedicine.

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