The Second Opinion: Loss Of Chance – A Lost Cause In Quebec

In Lévesque v. Hudon, 2013 QCCA 920, the Quebec Court of Appeal has confirmed that the theory of loss of chance or increase of risk does not apply to establish causation under the law of Quebec.

The plaintiff sued a physician for injury resulting from a delayed diagnosis by the physician which prevented treatment on a timely basis. The Superior Court decision held that each day was crucial to the potential benefits of treatment. Accordingly, the first instance judge held that a fault causing a delay of 48 hours in the diagnosis and treatment of the patient created a factual presumption of causation between the fault and injuries suffered. The court stated that timely treatment would have given the patient a 70% chance of full recovery. Further, the fault causing a delay in diagnosis and treatment deprived the patient of 60% of the chance of a full recovery. Accordingly, the Superior Court awarded the patient compensation for 42% of the damages suffered.