The Loss of a Chance to Recover

The application of the doctrine of a loss of a chance to recover in medical law 

A loss of a chance to recover is based on a plaintiff's right to institute action for the loss of a chance of avoiding a result rather than merely the result itself. Loss of chance in English law refers to a particular problem of causation, which arises in tort and contract. The law is invited to assess hypothetical outcomes, either affecting the claimant or a third party, where the defendant's breach of contract or of the duty of care for the purposes of negligence deprived the claimant of the opportunity to obtain a benefit and/or avoid a loss. For these purposes, the remedy of damages is normally intended to compensate for the claimant's loss of expectation (alternative rationales include restitution and reliance). 

The doctrine is discussed in some detail by Pat vd Heever (2007 Pulp University Press) in his book of the same name. Van den Heever (supra) states that a court will have the advantage when applying the doctrine to award damages if a plaintiff is unable to proof damages on a balance of probabilities. The quantum of damages is assessed according to the degree by which the defendant reduced or destroyed the plaintiff's chance of avoiding the injurious outcome.Van den Heever indicates that there are to date no reported cases of a loss of a chance having been argued successfully in South African law. The doctrine is however applied in England, Australia and the USA. 

In English Law, Lord Hoffmann in Kuwait Airways Corporation v Iraqi Airways Co (no's 4 & 5) states that one cannot separate questions of liability from questions of causation as one is not just liable but liable for something. In Australia the courts look at this issue as an injury within the scope of a foreseeable risk.The USA on the other hand looks at the doctrine from three different perspectives, the pure loss of a chance approach, the proportional approach and substantial possibility approach (Rufo v Hosking 2004 NSWCA 391)

Van den Heever states that an appropriate loss of a chance application in a medical negligence context should lift the burden of proof which confronts the plaintiff and simultaneously limit the defendant's liability. Van den Heever argues that in the South African context that such an action should be grounded on contract and tort in the alternative as causation in breach of contract is established when breach is proved on a balance of probabilities. A plaintiff will in such a case be entitled to non-patrimonial damages even if he is unable to prove causal damages. The question then arises what the standard of proof should be in such cases? 

Van Den Heever proceeds to deal with the roll of medical statistics in evaluating chance and in specific if a statistical chance or a personal chance should be used as a method of determination.  In the matter of De Klerk v ABSA Bank 2003 4 SA 315 (SCA) the court confirmed that determination of damages in a hypothetical future instance need not be established on a balance of probabilities but on the court's assessment of the chance of the risk coming to fruition. Van den Heever then begs the question if chance is real or substantial only at 51 % or if a 30% chance will also suffice.  

Hill (1991 54 Modern Law Review 521) argues that a statistical chance will not be unreasonable as a patient who had a 50/50 chance of recovery without the doctors negligence will be content with a settlement of 50% of the full damages proved and the patient whose chances were lower would recover at least something and doctors whose patients had a 51% loss will not pay out too much. As such, keeping it fair and reasonable and to that extent preventing a situation where a patient will get nothing or a doctor overpay (or for that matter the insurer of the doctor).

As it relates to the quantum, medical experts will have to evaluate the individual patient to estimate the percentage loss and the calculation should benefit both plaintiff and defendant in that if a plaintiff can show a 75% chance then the defendant should only pay 75% of damages proved.

The application of the doctrine of a loss of a chance to recover in medical law by Pat van den Heever is available from Pretoria University Law Press.