About the recent visit to Chile by Luis Medina is worth drawing attention a statement that unequivocally fixes the loss of a chance.
In the case under review, the Court of Appeals of Puerto Montt (January 31, 2009, Docket No. 7-2009) condemns a health service to compensate for losses incurred resulting from the delay in communicating the result of a blood sample taken from a donor, preventing known its status as HIV positive.
According to the ruling, "the defendant committed lack of service, since the actor's attention is omitted acts diligently to exhaust should be communicating the blood sample taken when he went to donate blood which would allow entry to care and AIDS control program in good time to prevent further progression of the condition in which treatment was started and the psychological effect that has occurred in actor (cons. 6).
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defects form, in general, typical case scenarios that cause limited damage, which can be assessed in objective terms through the idea of \u200b\u200ba loss of opportunity. In the field of hospital liability, disclose the diagnosis of a disease allows the patient to exert some influence on the course of action to follow, conversely, the damage it would cause if not give that diagnosis or provide a different one can not be equated to the damage that is itself the disease in question. If something needs to be repaired in this case is just the frustration of the possibility of adopting a course of action different from the disease. Although it can not be established a causal link between the harmful event and disease, it can be configured with respect to that missed opportunity, whose value will make the judge (usually with the help of experts).
Perhaps the technique could be extrapolated with shades, other areas that are at stake duties to inform. The judges know-otherwise not insist on this point so that many road accidents could be prevented from having an adequate signal road hazards.
Here the Court says it is aware that "the service defendant has not had any impact on the fact that the plaintiff contracted the disease, and the fact that despite the late submission, you have made keeping treatments stable viral load and asymptomatic (cons. 10). However, " early detection of AIDS has been more beneficial to health and physical condition of the applicant because it would have faced a lower percentage of mortality of the disease, at least improve their prognosis, however when informed he was in the advanced stage of disease (cons. 9). This reasoning can be seen in the specific characteristics of the repair of lost opportunity: the relevant information would not have got rid of AIDS, but at least they could have improved its prognosis.
In one aspect, however, the application of the theory seems rather loose. Normally the determination of the loss of chance seeks to narrow the loss and damage materials. The main challenge raises the notion of loss of chance is in recovery, for which analytical models should discover that weights with reasonable certainty the extent of loss. How much time was wasted in the detection of AIDS?, How the disease progressed in that time?, "Was available to the patient a treatment that would avoid a violent evolution?," After taking, their effect has had an impact on the state health of the victim? In this case, the Court used this method as a technique for assessing the moral damage, which in the context of Chilean law is not much to say. Of course, one gets the feeling that the Court acted prudently some magnanimity to reduce compensation in other conditions has been more important. But the problem of moral damages lottery does not seem able to be resolved only with the wisdom of the judge, on the contrary, there is probably root.
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