The "loss of chance" doctrine: How does it change the concept of health care liability?

The doctrine of "loss of chance" is a relatively complex and controversial legal concept that has received more and more attention in recent years, particularly in the Czech legal environment, especially in connection with its application in the context of compensation in medico-legal disputes. This doctrine has become the subject of much debate among legal and medical experts, with some arguing, among other things, that this legal concept or its application will only lead to a significant increase in litigation and an increase in the cost of healthcare, while others argue that it is necessary to ensure that patients are adequately compensated for the damage they have suffered in connection with the provision of healthcare services.

In this article, we will discuss what specifically the "loss of chance" doctrine consists of, what the key elements of the doctrine are, and how it can be applied to the delivery of health care.

The concept of the "loss of chance" doctrine

If a health care provider acts non lege artis in the provision of health care, or breaches another of its statutory duties, and a patient suffers a personal injury as a result, the patient may subsequently seek compensation for the injury in civil proceedings, in which he or she will have to prove that (1) a certain unlawful act (non lege artis procedure) occurred, (2) the injury to health occurred, (3) there is a causal link between the doctor's wrongful act and the injury to health (causal nexus), and (4) the existence of fault, if any. Due to the specificities inherent in the field of health care delivery, in particular because of the many possible influences and factors that may affect the resulting outcome, the patient is very often unable to establish the causal nexus between the non lege artis conduct of the doctor or other health care professional and the resulting personal injury with sufficient certainty. One of the tools that responds to this fact is precisely the doctrine of "loss of chance".

The doctrine of "loss of chance" is a legal concept that reflects the difficulty of proving a causal connection between the erroneous conduct of a physician or other health care professional and the resulting personal injury by creating a new special type of injury - a lost chance (of recovery or survival). Thus, if this doctrine is applied, the plaintiff will be proving a causal connection between the physician's wrongful conduct (non lege artis procedure) and the resulting injury in the form of a lost chance, not a personal injury.

How does the doctrine differ from the current concept of vicarious liability?

If the injured party (plaintiff) chooses to build his or her case on the basis of the "loss of chance" doctrine, he or she will not have to prove that the defendant caused the injury in question, but will have to prove with reasonable certainty that the defendant's breach of duty caused the plaintiff's loss of chance. Thus, if the plaintiff alleges that he lost a 30% chance of recovery as a result of the defendant's misconduct, he will have to prove with the requisite certainty that there is a causal relationship between that misconduct and the loss of the 30% chance of recovery. It is important to emphasize, therefore, that the doctrine does not in any way interfere with the other prerequisites of liability for damages, apart from the new approach to injurious consequence.

As to the amount of compensation awarded as a result of the application of the doctrine, the prevailing view is that, in the application of the doctrine, the plaintiff is entitled, in the event of successful litigation, to compensation in an amount corresponding to the percentage loss of chance, i.e., in an amount corresponding to the chance of survival or improvement of his health deprived by the defendant. The court must therefore determine and compare, on the basis of expert evidence, what chance of recovery/survival the injured party would have had if the doctor had acted lege artis, and on that basis determine what chance the injured party was deprived of by the doctor's non-lege artis procedure. The specific amount is then determined by a percentage of the amount of compensation which the applicant would have been entitled to for the personal injury suffered. At the same time, there is still a world, but minority, view that a claim should be made for the full amount, not just a proportionate amount, given that the claimant bears the burden of proof and actually establishes with certainty a causal relationship between the wrongful conduct of the tortfeasor and the loss of opportunity, or that the lost opportunity is itself a reparable claim, the amount of which should be decided, in the court's discretion, regardless of the percentage.

Given the existence of different approaches to the doctrine of "loss of chance", it is crucial how the Czech judicial practice treats it. The Constitutional Court of the Czech Republic dealt with this doctrine for the first time in 2008, where it expressed a very positive opinion on its application in medico-legal disputes, and this positive tendency continues. The Supreme Court has been reluctant to comment on the application of the doctrine for quite a long time, but especially in the last three years it has been forced to deal with the application of the doctrine in a certain way. The jurisprudence's view on the application of the doctrine will be the subject of another article.