No more "all or nothing": abandoning the Balance of Probability rule in cases of vague and subjective medical causation.
In March 2005, after several obiter rulings on this issue, the Supreme Court of Israel finally abandoned the "Balance of Probability" rule, finding it unjustifiable in situations of vague causation, and moved to use a statistical damages rule. According to this rule, when the cause of the damage cannot be proven for any vague medical (or any other scientific) reason, the plaintiff may meet his burden of proof by proving only a "significant" statistical probability, which may be lower than 50%, that the damage was caused by the defendant's negligent actions, although other external causes may be considered as likely or even more likely to be involved in the causation process. In cases when this burden of proof is met, the plaintiff would be compensated by a percentage of the total damage, equal to the percentage of the statistical probability proved. This ruling is a major change from the basic Balance of Probability rule, carrying with it a whole area of problems and questions, amongst which are questions as to the limits of its use and as to the basic justness and necessity of the Balance of Probability rule.
Peled-Raz
Maya
M
The International Center for Health, Law and Ethics, University of Haifa, Israel.
D015984:Causality; D002648:Child; D005260:Female; D006801:Humans; D007231:Infant, Newborn; D007234:Infant, Premature; D007557:Israel; D016365:Liability, Legal; D008318:Malpractice / Q000331:legislation & jurisprudence*; D011336:Probability