In medical law, it is not always easy to establish whether a patient’s damage was entirely caused by a medical error. Sometimes it is uncertain whether the injury would have occurred if the doctor had acted correctly.
However, that does not mean that you as a patient have to remain empty-handed. In those situations, there may be a “loss of a chance” – a special form of compensation prevalent in medical liability cases. In this blog, we explain what this concept means, when you can invoke it, and how the compensation is calculated.
What does ‘loss of a chance’ mean?
‘Loss of chance’ means that a medical mistake does not necessarily have to lead directly to the injury, but it DID reduce or eliminate the chance of a better outcome.
In other words:
The doctor didn’t cause the injury, but he deprived the patient of a real chance at recovery, cure, or a more favorable outcome.
In that case, the doctor (or hospital) can be held liable for the lost chance of a better treatment result.
Example: late diagnosis of cancer
Suppose a doctor diagnoses too late, causing the treatment to start late. If the injury (for example, metastases) cannot be attributed with certainty to that delay, but there was still a reasonable chance that early treatment would have led to a better result, then the patient is entitled to compensation due to the loss of that chance.
The crucial question then is:
What was the chance that the outcome would have been better if the doctor had acted sooner or correctly?
When is there a loss of a chance?
Not every missed opportunity automatically leads to compensation. There are three legal criteria that must be met:
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A medical error
The doctor or hospital did not act as a reasonably skilled caregiver would in the same circumstances. -
A reasonable chance of a better result
There has to be enough medical ground for assuming that the patient had a significant chance of recovery or a more favorable outcome. That chance doesn’t have to be big, but it can’t be negligibly small either. -
The loss of that chance due to the error
The mistake must be the actual cause of the loss of that chance.
If these criteria are met, you as a patient are entitled to partial compensation.
How is the compensation calculated?
In case of loss of a chance, the patient gets not the full damage compensation, but a percentage of it that corresponds to the chance that was lost.
An example:
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The chance of recovery with a timely diagnosis was 60%.
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Due to the error, that chance disappeared.
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Then 60% of the total damage can be compensated.
So, it’s not about exact numbers, but about a reasonable estimate, often based on medical statistics, expert reports, and guidelines.
Why this is legally important
Without this doctrine, many victims of medical errors wouldn’t be entitled to compensation because the causal link between error and damage is not fully provable. By the doctrine loss of a chance, the judge acknowledges that the lack of certainty should not always be to the detriment of the patient.
It therefore offers protection in situations in which:
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the error is likely, but the exact medical consequences remain uncertain;
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or in which the doctor’s actions significantly reduced the patient’s chances.
Examples from practice
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Late diagnosis of a brain infarction:
A patient is examined only after hours, while rapid treatment had increased the chances of full recovery. Due to the delay, that chance has vanished. -
Incorrect interpretation of test results:
A doctor doesn’t recognize the deviation on an X-ray, causing a necessary operation to take place too late. The patient develops complications that might have been preventable. -
Non-referral to a specialist:
A general practitioner doesn’t timely refer a patient with severe symptoms. As a result, the disease is discovered late, with permanent damage.
In all these cases, the compensation can be based on the percentage of chance lost due to the error.
How can you prove loss of a chance?
Providing proof is complex, as it combines medical knowledge and statistics. Typically, three types of evidence are needed:
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Medical record – to determine what the doctor did or did not do;
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Expert report – in which a medical specialist assesses how big the chance of recovery was with correct action;
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Damage calculation – in which the financial and non-pecuniary damage suffered by the missed opportunity is determined.
Read more about this in our blog Causal link in medical errors.
Types of damage that can be compensated
In case of loss of a chance, both material and non-pecuniary damage can be compensated:
Material damage:
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medical costs, additional treatments, and rehabilitation;
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loss of income or earning capacity;
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costs of aid, transportation, or aids.
Non-pecuniary damage (damages):
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for pain, sorrow, and lost joy of life.
Read more about it in our blog How can you calculate damages?.
Why legal assistance is essential
Proving a loss of a chance requires both medical and legal expertise. Our lawyers work closely with medical advisors and damage experts to carefully substantiate each case.
At Arslan Lawyers, we ensure that:
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the mistake and the connection with the loss of chance are carefully established;
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all relevant damage items are taken into account;
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and you receive the maximum compensation you are entitled to.
Our services are completely free of charge for victims, as we recover our costs from the liable party.
Why choose Arslan Lawyers?
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Specialized in medical liability and loss of chance
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Intensive collaboration with medical specialists
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Completely free legal assistance
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Experienced lawyers with documented success in complex medical cases
We make sure your voice is heard – and that you get what you are entitled to.
