Indemnity for a lost chance

Abstract

Civil liability for a lost chance applies to cases in which a tortious action changes the probabilities of the outcomes that can be obtained by the victim. A central point in the application of this type of liability is the valuation of damages. Despite the practical importance of the valuation of lost chances, the legal restrictions that guide it have rarely been discussed explicitly. In order to discuss these restrictions, we propose an abstract description of a lost chance case in which there are multiple possible outcomes and the victim can make a choice that affects these outcomes. Given this description, we propose six conceptual questions to guide the valuation of lost chances. We discuss alternative answers to these questions and present the formulas that derive from them. More specifically, we show that the main formulas that have been proposed for medical misdiagnosis cases are particular instances of the alternatives we discuss.