Comparative Study of the &quot;Loss of Chance&quot; Doctrine:

Concise Study of European Countries Approaches and the U.S.A.’s Approach

Amini1*,, Mansour; Nategh Nouri2, Soudeh

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Comparative law Research Quarterly

Volume 15, Issue 3 (2011) CLR 2011, 15(3): 21-28 | Back to browse issues page

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Amini1*, M, Nategh Nouri2 S. Comparative Study of the "Loss of Chance" Doctrine: Concise Study of European Countries Approaches and the U.S.A.’s Approach. CLR 2011; 15 (3) :21-28
URL: http://clr.modares.ac.ir/article-20-6731-en.html

Comparative Study of the "Loss of Chance" Doctrine: Concise Study of European Countries Approaches and the U.S.A.’s Approach

Mansour Amini1,

¹, Soudeh Nategh Nouri2²

1- 1- Assistant Professor, Department of Private Law, Faculty of Law Shahid Beheshti University, Tehran, Iran
2- 2- Ph.D. Candidate, Department of Law and Political Sciences, Science and Research Branch, Islamic Azad University,Tehran, Iran

Abstract: (8075 Views)

The doctrine of “Loss of Chance” recovers damages that occur as a result of destruction of prospect for achieving a favorable outcome. The outcome might have been acquiring benefits or preventing harms. There is no consensus among jurisdictions about the entitlement of the losers of such chances (chances to acquire benefits or to prevent harms) for compensation. Some European countries, such as France, have strongly supported the doctrine, whereas some other jurisdictions in the North American region, such as South Dakota State, have prevented the doctrine from any further expansion using statutory interventions. This article reviews the current application of the doctrine of “Loss of Chance” in the European and the American jurisdictions. It also examines the applicability of this doctrine in the Iranian legal system. Although neither relevant statutes nor jurisprudences have recognized the doctrine of “Loss of Chance” in Iran, the underlying principles of the Iran’s tort law and Sharia may imply its applicability. However, regardless of the legal grounds, some procedural and enforcement barriers may prevent this doctrine from being invoked in Iran.

Keywords: Loss of Chance, Acquiring benefit, Preventing harms, Medical malpractices

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Received: 2011/01/24 | Accepted: 2011/12/12 | Published: 2012/08/31

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