Modern Approaches to Assessment of Loss of Chance Damages due to Medical Malpractice

A complicated issue of the legal systems of the method for compensation of medical errors is specifically related to how to the manner for claiming "loss of chance". Here, the concept of loss of chance is meant a situation where, as a result of the physician's action or omission, the chance to treat the patient is lost or the opportunity to receive the desired treatment is lost. For the purpose of the compensation of damages caused by the loss of chance in various legal systems, three approaches are recognized: "pure loss of chance", "basic probability" and "proportionality". The course of developments has been examined in this study and by pondering on the case law of the leading countries, it becomes known that the procedure for hearing cases arisen out of medical treatments is incorrect noting our laws and judicial practice; among these, Diyeh (blood money) as a compensator for all perceived damages from medical malpractice and/or the manner of commenting on the criteria and extent of fault by the medical commissions can be mentioned that go through the criminal process in our courts. In this study, using the analytical-descriptive method, by examining the reasons and arguments, it shows that the "proportional" approach has more strengths compared to other theories, and it seems that the possibility of claiming damages due to the loss of chance in Iran should be accepted, taking into account the generality of Article 1 of the Civil Liability Act and the generality of the Islamic Criminal Code, including the chapter on guarantee.