Studies On The Compensation Of Loss Of Chance In Medical Tort

As the process of the society and living standards has accelerated the social development significantly, the social relations become more and more complecatied, and people begin to pay attention to protect their rights. It puts forward higher requirements to tort law. With the emergence of different types of complex issues, tort law has significantly broadened the scope of applications. This article discussed damages of loss of chance in medical tort cases. It is not a new issue in tort law, but it is also an ongoing debate since it came up. We defined loss of chance in medical tort as that if a doctor’s malconduct cause the reduction of his patient’s survival or cure chance during the patient in the hospital. Most of the scholars and judges agreed that loss of chance in medical tort is a special issue in tort law. Firstly, the consequences of the damage in loss of chance cases are determined to be the damage between an intermediated damage and future harm. It is hard to be identified as a kind of damage in tort law. Secondly, after the loss of survival or cure chance, the final result of death or indeed incurable illness may not happen. There are obstacles when we want to identify the causal relationship between doctor’s malconduct and the loss of chance result. Thus, the loss of chance in medical tort cases should be a separated tort law issue.The second part of the article describes the rich extraterritorial legal practice of loss of chance in medical tort. In the United Kingdom and the most states of the United States, this issue is regarded as a causation problem. In order to solve the problem, it came out variety of theories like “the substantial possibility theory”, “the increased risk theory” and “the proportion of causality theory.” In some cases, these theories can solve the problem, but in some other cases these were inefficient. In Japan, France, Quebec civil law, they identified the loss of chance problem in medical tort as the issue of how to identity damages. By recognize new type of damage and limited expense the scope of the meaning of damage, the loss of chance problem can be solved.The third part of the article analyses the loss of chance issue by the constituent elements of liability in tort law. Doctor’s malconduct that causes the ruduce of the living chance of his patients is illegal, and the doctor should have subjective offence, it can be intentional of negligent. Judges cannot use normal rational human standards to judge if the doctor has subjective fault, because medical behavior is very special and it need special skills. If we identify the loss of chance damage as a new type of damage in tort law, the causality problem will be solved.The fourth part of this article discussed how to compensate the damage in the loss of chance in medical tort cases. The damage in loss of chance cases are divided into four categories, namely, foundation damage, loss of chance damage, the derived damage of loss of chance, the final damage. Only the second and the third kind of damage required compensation. There are many ways to calculate the loss of chance damage in medical tort. The present paper argues that the damage should be calculated by judges.