The doctrine of loss of chance: a saviour in cases of unclear causation?

• Main Author: Jahn Kassim, Puteri Nemie
• Format: Article
• Language: English
• Published: LexisNexis Malaysia Sdn Bhd 2003
• Subjects: K Law (General); R Medicine (General)
• Online Access: http://irep.iium.edu.my/3436/1/doctrine_loss_chance.pdf; http://irep.iium.edu.my/3436/; http://w3.nexis.com/sources/scripts/info.pl?153134

In proving negligence, one of the elements which the plaintiff must prove is that the damage suffered was caused by the defendant's negligence. In other words, the burden of proof lies on the plaintiff to prove causation. The standard of proof requires the plaintiff to show on balance of probabilities that, in the absence of the breach, he would not have suffered the injury. 1 Proof on the balance of probabilities means that if something can be proved fifty-one percent likely, then it is treated as having occurred, and, if proved forty-nine percent likely, it is held not to have occurred. 2 In medical malpractice context, the patient must demonstrate that there was a reasonable medical probability that the doctor's negligence caused the patient's injuries. The phrase reasonable medical probability means more than fifty percent chance that the negligence caused the injury. 3 If the plaintiff fails to prove causation on balance of probabilities, then the plaintiff gets nothing in term of damages. 4 However, in cases where the patient claims that the doctor's failure to give prompt diagnosis and treatment deprived him of the chances of making full recovery from the illness or injury he originally suffered, proving causation on balance of probabilities is quite an impossible task. The plaintiff is usually faced with over complexity or lack of clarity of the available evidence to prove that in the absence of the doctor's breach of duty, a full recovery from illness would have been made. In many instances, the plaintiff will only have evidence as to the effect of the negligence on the chances of recovery in the form of statistical probabilities. 5 The problem lies where the prospects of a successful outcome to the treatment were estimated to be less than fifty percent, then the patient cannot prove causation on balance of probabilities. This is due to the fact that even if prompt and proper treatment were given, the damage would probably (ie more likely than not) have occurred in the event. Thus, in cases whereloss of chancesforms the basis of the negligence claim, the plaintiff will usually fail at the causation stage.