Loss of Chance: A New Kind of Damage to Ophthalmologic Patients from Europe to Italy

Abstract

This work was inspired by a recent juridical development in Italy, whose purpose is to prevent rejection of damage claims whenever it is not possible to prove a causal link between iatrogenic illicit behavior and damage to the patient, despite the fact that the patient has clearly suffered physical or mental injury. In view of this, some European countries-e.g., France and Germany-have recently come up with a new damage interpretation called loss of chance, i.e., the missed opportunity to get a more favorable outcome through different or more timely and efficient therapies. Although the problem has been thoroughly discussed on several levels, no countries have conformed their legislation accordingly, leaving it up to the courts to settle issues of damage claims where loss of chance can be applied and to resolve doubts about the limits of applicability of this new type of damage interpretation. The concept of loss of chance seems to be applicable to many cases in ophthalmologic practice. For example, glaucoma and macular degeneration are common, serious, and potentially blinding diseases in which delayed diagnosis and therapy reduce the chances not only to limit injuries, but also to stop future progress of the disease. Hence, the authors emphasize that a good practice is the only way for ophthalmologists to avoid malpractice claims related to the new developments in tort law in Italy and in other European countries following the creation of new definitions of damage.