Publication
Title
COVID-19 and loss of a chance
Author
Abstract
: During the COVID-19 pandemic, emergency departments, hospitals and individual healthcare professionals were overwhelmed. As a result, other medical activities, such as consultations with specialists, preventive screenings and effective surgeries, were postponed. Multiple studies, conducted in different parts of the world, have shown that this has led to millions of undiscovered cancers and hundreds of additional deaths with consequent lost chances of survival for patients. The issue arises as to whether patients or their legal successors can claim damages because of that loss of a chance for survival. This research finds that the loss of a chance doctrine is accepted in Belgium and a majority of the United States of America. Australia does not accept the doctrine, in line with the 2010 High Court Judgement of Tabet v. Gett. Once this doctrine is generally accepted, the likelihood appears to be minimal that claims are accepted, based on the loss of a chance doctrine in situations as described. Taking into account the precautionary principle in rapidly changing situations, the contagiousness of the virus and the possible contributory negligence of the patient, the burden of proof to establish a causal link between a breach of the duty of care and the loss of a chance for survival is largely hypothetical, although not impossible. Case-bycase assessment is once again the guiding principle.
Language
English
Source (journal)
Medicine and law. - Berlin
Publication
Berlin : 2023
ISSN
0723-1393
Volume/pages
42 :4 (2023) , p. 657-679
Note
26th World Congress on Medical Law, held from December 5th-7th 2022, Gold Coast, Australia
Full text (open access)
The author-created version that incorporates referee comments and is the accepted for publication version Available from 01.01.2025
Full text (publisher's version - intranet only)
UAntwerpen
Faculty/Department
Research group
Publication type
Subject
Law 
Affiliation
Publications with a UAntwerp address
External links
Record
Identifier
Creation 05.02.2024
Last edited 06.02.2024
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