In medical law it is not always easy to determine whether a patient's damage was entirely caused by a medical error. Sometimes it is not certain whether the injury would have occurred if the doctor had acted correctly.
However, this does not mean that you as a patient have to be left empty-handed. In these situations there may be “loss of a chance” — a special form of compensation that often occurs in medical liability cases.
In this blog we explain what this concept means, when you can rely on it and how the compensation is calculated.
What does 'loss of a chance' mean?
'Loss of a chance' means that a medical error does not necessarily have to have directly led to the injury, but it has. reduced or eliminated the chance of a better result.
In other words:
The doctor did not cause the injury, but deprived the patient of a real chance of recovery, healing or a more favorable outcome.
In that case, the doctor (or the hospital) can be held liable for the lost chance of a better treatment result.
Example: too late diagnosis of cancer
Suppose a doctor makes the correct diagnosis too late, resulting in treatment starting later.
If the injury (for example metastases) cannot be attributed with certainty to that delay, but there was a real chance that early treatment would have led to a better result, then the patient is entitled to compensation for loss of that chance.
The key question is then:
What was the chance that the outcome would be better? would have been if the doctor had acted earlier or correctly?
When is there a loss of opportunity?
Not every missed opportunity automatically leads to compensation.
There are three legal conditions that must be met:
A medical error
The doctor or hospital has not acted as a reasonably competent healthcare provider would in the same circumstances do.A realistic chance of a better outcome
There must be sufficient medical grounds to assume that the patient had a significant chance of recovery or a more favorable outcome. That chance does not have to be great, but it may not be negligibly small either.The loss of that opportunity due to the error
The error must actually be the cause of the loss of that opportunity.
If these conditions are met, you as a patient are entitled to partial compensation.
How is the compensation calculated?
In the event of loss of an opportunity, the patient does not receive the full damage, but a percentage thereof that corresponds to the chance that was lost.
An example:
The chance of recovery with a timely diagnosis was 60%.
Because of the error, that chance has disappeared.
Then 60% of the total damage can be compensated.
It is therefore not about exact figures, but about a reasonable estimate, often based on medical statistics, expert reports and guidelines.
Why this is legally important
Without this doctrine, many victims of medical errors would not be entitled to compensation, because the causal link between error and damage cannot be fully proven.
Through the doctrine of loss of a chance, the judge recognizes that the lack of certainty may not always be to the detriment of the patient It therefore offers protection in situations where:
the error is plausible, but the exact medical consequences remain uncertain;
or where the doctor's actions have significantly reduced the patient's chances.
Practical examples
Late diagnosis of a cerebral infarction:
A patient is only examined after hours, while rapid treatment would have increased the chance of full recovery.
Due to the delay, that chance was lost.Incorrect interpretation of test results:
A doctor does not recognize the abnormality on an consequence.
In all these cases, compensation can be based on the percentage of chance lost due to the error.
How do you prove loss of chance?
The evidence is complex, because medical knowledge and statistics come together.
Three types of evidence are usually needed:
Medical record – to establish what the doctor did or omitted;
Expert report – in which a medical specialist assesses the likelihood of recovery if correct action was taken;
Damage calculation – which determines the financial and immaterial damage suffered as a result of the missed opportunity.
Read more about this in our blog Causal connection in medical errors.
Types of damage that can be compensated
In the event of loss of opportunity, both material and immaterial damage can be incurred reimbursed:
Material damage:
medical costs, additional treatments and rehabilitation;
loss of income or loss of earning capacity;
costs of assistance, transport or aids.
Intangible damage (punishment):
for pain, grief and loss joie de vivre.
You can read more about this in our blog How can you receive compensation for damages? calculate?.
Why legal assistance is essential
Demonstrating loss of a chance requires both medical and legal expertise.
Our lawyers work closely with medical advisors and damage experts to carefully substantiate each file.
At Arslan Advocaten we ensure that:
the error and the connection with the loss of opportunity are carefully determined;
all relevant damage items are included;
and you receive the maximum compensation you are entitled to.
Our services are comprehensive free of charge for victims, because we recover our costs from the liable party.
Why choose Arslan Advocaten?
Specialized in medical liability and loss of opportunity
Intensive collaboration with medical specialists
Completely free legal assistance
Experienced lawyers with proven results in complex medical cases
We ensure that your voice is heard — and that you get what you are entitled to.