Again on the Loss of Chance in Medical Liability

The concept of loss of chance -recognized and applied by the courts in many jurisdictions, but rejected in others- is vague and gives rise to many doubts and controversies. The doctrine discusses its legal nature, as well as the conditions that must be met for its application. Spanish case law has made use of this concept in various fields, one of which is that of health liability. The curious thing is that the specific cases in which it is used vary depending on whether the jurisdiction is administrative or civil. After making a statement on the nature and requirements of the figure under analysis, the aim of this paper is to clearly delimit these cases, in order to determine whether it makes sense to solve the problems that arise by resorting to it or whether, on the contrary, it would be more sensible to seek another solution. It also aims to verify whether, in cases where recourse to the theory of loss of chance is justified, the courts apply it correctly.