Loss of chance in medical negligence

Abstract

Occasionally accidents and complications occur during anaesthesia and perioperative care that result in injury to the patient. Unfortunately, this is sometimes due to a breach in the anaesthetist's duty of care to the patient. Sometimes, rather than being the cause of immediate damage, the act or omission results in an alteration in the prognosis of the complaint or increased risk of complications related to the complaint. This avenue for a negligence action is known as 'loss of chance of a better outcome' and has been the subject of much legal argument in Australia in recent years. A recent High Court of Australia decision is widely seen as having 'closed the door' to, or at least made it difficult for the patient to succeed in, loss of chance cases. Many anaesthetists may not be familiar with the concept of 'loss of chance'. This review will explore the concept of loss of chance and the manner in which Australian courts have dealt with it before and after Tabet v Gett from the perspective of the anaesthetist.