The Theory of Loss of a Chance from the Perspective of Civil Liability of participants in the doctor and patient relationship

Evolution, Applicability and Legal Challenges

Abstract

Context: The theory of loss of opportunity is gradually becoming established in Brazilian law as an important development in civil liability, especially in contexts where compensation for damage does not result from concrete and immediate harm, but from the frustration of a real and plausible expectation of obtaining a benefit or avoiding harm. Problem: This legal construct proposes holding the causative agent liable for culpable conduct, whether active or passive, that significantly suppresses or reduces the probability of success of another person in various spheres of civil life. Objective: This article aims to analyze the theoretical foundations of loss of opportunity, its doctrinal origin, jurisprudential consolidation, and practical applicability, with an emphasis on the fields of medical liability, law, and public administration. Method: To this end, a qualitative methodology is adopted, based on a bibliographic review of national and foreign doctrine, as well as an analysis of judicial precedents handed down by Brazilian courts. Result: It is concluded that the theory of loss of a chance represents an advance in the protection of subjective rights, by recognizing situations of probabilistic damage as legally relevant. Conclusion: However, its application still faces significant challenges, especially with regard to the quantification of damage and the standardization of interpretative criteria in Brazilian courts.