Casual link and probabilistic calculation of damage by loss of opportunity

Abstract

The application of the doctrine of loss of opportunity has no normative basis, but it has full jurisprudential recognition. It is applied, as far as medical-sanitary liability is concerned, in civil jurisdiction and especially in contentious-administrative proceedings, as a technique to overcome serious difficulties in proving the causal link and to avoid the solution to which the traditional "all or nothing" causal model leads. In addition to the determination of ant juridical damage, which is difficult to specify, there is the probabilistic calculation, in both cases, on a hypothetical scenario. We analyze the different scenarios where it is applied and realize the difficulty of determining and quantifying the deprivation of that "frustrated expectation" of the patient. Sometimes, the margin of legal certainty is altered, with different pronouncements, in the face of similar assumptions.