The concept of loss of chance: A major evolution in the definition of damage or how to prevent litigation for loss of chance?

摘要

The concept of medical error in responsibility litigation was based until the past last years on a necessary direct and definite causal link between fault and injury. In France, since the 1960s and increasingly during the last decade, the idea of loss of chance arose, considered as a new and genuine prejudice (practically, a fixable damage); it became the subject of several legal precedents from the Cour de cassation and the Conseil d'Etat. Thus, plaintiffs may currently demand a compensation for a loss of chance even though a doubt exists on the causal link between the fault and the observed damage. The most frequent litigation circumstances implying a loss of chance are lack of information, lack or delay in diagnosis, delay in action, and default in medical assessment. Based on practical cases, the author presents the most propitious situations where litigation for loss of chance may occur and discusses possible preventive measures. (C) 2016 Societe francaise de radiotherapie oncologique (SFRO). Published by Elsevier Masson SAS. All rights reserved.