Loss of chance in medical professional liability: the measure of our ignorance

In 1921, philosopher and economist J.M. Keynes, in his “A Treatise on Probability”, described chance as a “measure of our ignorance.” The Italian Supreme Court also took up this fascinating definition in ruling No. 28993, 11.11.2019, to underline its intrinsically uncertain, sometimes subjective, however elusive, nature. The Supreme Court, with this judgment, set a point: to be compensable, the chance must be palpable, severe and consistent. Despite the various jurisprudential interventions that have attempted to give form and substance to the loss of chance damage, several questions still remain open, such as the actual estimation of the chance, based on reliable scientific criteria and its economic adaptation. These considerations are the starting point for our research. The analysis included all judgments issued by the Judges of the 13th Section of the Civil Court of Rome and published between January 2016 and December 2020. At the end of the collection, selection and anonymisation phase, 1117 documents were submitted for analysis. Loss of chance damages were claimed in only 51 cases (4.56 % of the total number of judgments), with recognition of this type of damage in only 13 out of 51 decisions (25.5 %). The amount paid was €2,265,682.06, representing approximately 1.7 % of the total compensation paid for all medical malpractice cases during the period under analysis. The average compensation was € 174,283.235. In most cases, there was misdiagnosis or delayed diagnosis or management of oncological diseases, conditions with reduced life expectancy in which medical intervention aims to increase the chances of survival or recovery.