The Doctrine of "Loss of Chance": an Analysis of the Development of Judicial Practice and the Current Application of the Doctrine in the Czech Legal System

In our last article, we discussed the concept of the "loss of chance" doctrine and its key aspects. As it is a controversial legal concept to this day, it is very important how the Czech courts approach the application of the doctrine and whether they recognise the doctrine and its application in medico-legal disputes.

Resolution of the Constitutional Court of 12 August 2008, Case No I. ÚS 1919/08

The first decision that dealt with the application of the doctrine of "loss of chance" is the resolution of the Constitutional Court, Case No. I. ÚS 1919/08. In this resolution, the Constitutional Court for the first time introduced the doctrine as a possible solution to the problem of proving a causal relationship between the doctor's misconduct and the resulting injury, in particular criticizing the requirement of "one hundred percent" proof of causation. Here, the Constitutional Court highlights the main importance and contribution of the doctrine, in particular that the doctrine represents a possible tool to address issues related to proving causation in medico-legal disputes, including compensating the weaker position of the injured party. Already in this decision, the Constitutional Court starts a "trend" that it follows in its subsequent decisions - although it considers the doctrine to be a suitable tool, it interprets it as only one of several solutions to the issue at hand, which the general courts may not recognise or apply if they find another way that provides adequate protection for patients.

Judgment of the Supreme Court of 27 September 2017, Case No. 30 Cdo 41/2017

The Supreme Court addressed the doctrine in more detail for the first time with its judgment in Case No. 30 Cdo 41/2017, in which it concluded that if a patient's chances of survival were reduced as a result of a doctor's non lege artis procedure, this was an interference with her personal rights, which also constituted an interference with the personal rights of the survivors. The Supreme Court has thus expressed that it is possible to successfully claim protection of personality rights if the interference in question was at least capable of impairing or endangering the rights protected by law and it is not necessary that the specific interference lead to a particular consequence. However, the Supreme Court has only looked at "lost opportunity" in the context of a personality rights claim; it has not addressed the application of the "lost opportunity" doctrine as such. This conclusion, however, was overcome by the Supreme Court's ruling less than three years later.

Supreme Court judgment of 31 August 2020, Case No. 25 Cdo 1014/20

The Supreme Court granted the judgment in Case No. 25 Cdo 1014/20 for the first time provided a detailed interpretation of the concept of "loss of chance" in accordance with its doctrinal definition and at the same time defined a rather broad list of its negative aspects, which lead the Supreme Court to reject the incorporation of the doctrine into judicial practice and the Czech legal system, in particular that the application of the doctrine is not supported by the relevant statutory norms; loss of chance is not a legal good explicitly protected by civil law norms; there would be a possibility of simultaneous claims for compensation for damage caused by loss of chance and for compensation for actual damage to health or life; there would be a significant increase in litigation, legal uncertainty or difficult predictability of the law.

Ruling of the Constitutional Court of 25 May 2021, Case No IV. ÚS 3416/20

These conclusions of the Supreme Court are, however, refuted by the Constitutional Court in its ruling No. IV ÚS 3416/20, which provides an opposite view of these grounds criticised by the Supreme Court and, on the contrary, finds certain positive aspects in them. One of the fundamental conclusions of the Constitutional Court, which also differs from the opinion of the Supreme Court, is that, according to the Constitutional Court, "chance" is a legal good that enjoys constitutional protection. At the same time, the Constitutional Court concludes that the approach to liability for damages should be applied in such a way as to best ensure that health care institutions provide their services to the highest possible standard and, in the event that misconduct occurs, should endeavour to put in place such systemic measures and control mechanisms to prevent further misconduct in their activities. Although this finding can be considered as favourable to the doctrine of 'loss of chance', the Constitutional Court again takes a liberal position, since even in this finding it does not order the general courts to apply the doctrine necessarily, but only calls on them to find a solution which would provide adequate protection for patients and to give proper reasons for any rejection of a doctrine which the Constitutional Court itself considers 'very appropriate'.

Supreme Court judgment of 9 February 2022, Case No. 31 Cdo 2376/2021

The Supreme Court had to hear the case afresh. In its judgment, Case No. 31 Cdo 2376/2021, it still did not accept the doctrine of "loss of chance" as such, but it did accept it in a different form. The Supreme Court found a certain purely personal claim of the patient for loss of chance of cure, which would arise when the doctor acted non lege artis and the exact consequences in terms of traditional claims could not be determined with sufficient certainty. Such a claim for loss of chance would constitute a claim under the protection of personality rights. Thus, even though the patient could not establish a causal link between the doctor's wrongful conduct and the injury suffered, he could claim an interference with personality rights in that "he was not provided with professional care of an appropriate standard and was thereby deprived of the most precious value, which is human health, and must internally deal with the fact that he was deprived of the possibility of achieving a cure or of achieving the anticipated state of health." However, this claim can only be brought by the patient himself, not by the survivors.

In general terms, however, this approach by NS can have far-reaching consequences: while the reduction in chances is not a redressable injury, it does give rise to an injury to the victim's personality, consisting of mental anguish arising from having to deal internally with the fact that he or she has been deprived of the possibility of achieving a cure or a certain degree of health. If this approach takes hold in the case law, it potentially opens the door for a number of actions asserting this claim. These conclusions were subsequently confirmed by the Supreme Court in its further judgment of 30 March 2022, Case No. 25 Cdo 3332/2020, outlining how it will consider similar cases in the future.

It is clear that the Constitutional Court is generally sympathetic to the concept of a lost chance and would be in favour of its application. The Supreme Court, however, has rejected the doctrine in its doctrinal form and has rather taken the path of a certain compromise, which is not only linked to problematic aspects and allows patients to seek compensation for the wrongful conduct of doctors. However, as noted above, such a solution provides adequate protection "only" to the patients themselves, not to the survivors, who were the plaintiffs in most of the cases cited above. For this reason, too, the "loss of chance" doctrine can be expected to be the subject of many more medico-legal disputes, and the Supreme and Constitutional Courts will be forced to weigh in on the protection of survivors and their claims.

If you are interested in the topic of the "loss of chance" doctrine or have a question regarding compensation for damages or injuries caused in connection with the provision of health care, please do not hesitate to contact us.