Jurisprudential analysis of the precedent of the Council of State on loss of opportunity in the field of medical liability.

Abstract

The loss of opportunity of loss of chance (perte d’une chance), it is a figure of foreign origin, which has been adopted in our legal jurisprudential level. In this article, we will analyze then, the line drawn by the state council regarding the application of this figure in cases of medical failure, and the character or treatment that has been given to it in this field. For this, we will start from the perspective of medical responsibility in Colombia its concept and the elements for its structuring, and then address the origin of the lost opportunity, its conceptual construction and scope from the extremes that will lead the debate on its juridical nature: On one hand, as autonomous damage and on the other, as evidence facilitation tool. Finally, we will make an analysis of the main sentences issued by the Council of State regarding the loss of opportunity due the medical failure, to draw the jurisprudential line that will allow the answer to the question posed in this article. The importance of this issue is that the use of this is increasingly common in processes due to medical failure against the administration; therefore, it is of great importance to verify whether or not it is applied unanimously by judicial operators, in favor of the principle of legal certainty, and the right to equality of the users of the administration of justice.