Damage for loss of chance under Medical Malpractice liability?
Loss of chance damage might burden doctor and healthcare operators with a controversial obligation of result. In particular, healthcare operators may be liable for medical malpractice even though positive outcome of medical treatment was un-hoped and unexpected.
Italian Court of Cassation clarified this important matter through decision N 26303/2019
First, the Italian Supreme Court stated that in the event medical performance caused a higher physical or mental suffering, it does not fall under the legal umbrella of loss of chance damage. Rather, it is identified as biological damage or non-material harm.
Second, considering the damage for loss of chance as a compensable damage overriding causal link between the event and the damage may have dangerous consequence for medical performances. In fact, doing so, the obligation arising from medical contract performance might be turned into a guaranteed result obligation. Subsequently, loss of opportunity damage may become an automatic consequence of any medical treatment.
Third, the Italian Court of Cassation confirmed that the damage for loss of chance does not fall under the regulative ground of medical responsibility.