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Title
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COVID-19 and loss of a chance : an analysis of the legal framework of Belglium, the United State of America and Australia on the loss of chances for survival caused by diagnostic and medical delays because of the COVID-19 pandemic
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Author
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Abstract
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| : 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. |
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Language
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English
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Source (journal)
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Medicine and law. - Berlin
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Publication
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Berlin
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2023
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ISSN
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0723-1393
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Volume/pages
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42
:4
(2023)
, p. 657-679
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ISI
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001303819200001
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Note
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26th World Congress on Medical Law, held from December 5th-7th 2022, Gold Coast, Australia
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Full text (open access)
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Full text (publisher's version - intranet only)
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