| Law is an important tool to protect the rights and interests of human.However,in the course of the continuous development of social and economic life and the ever-changing technology,the goal of the tort law,which is protecting rights and interests of legal body,has not been realized.However,any country’s law does not necessarily provide relief for all damage,and it is impossible to ignore all the damage.Setting damages clauses in relevant laws,requireslegislators and judges to make decisions on the value of freedom and security theat different levels,meanwhile,tort law through providing proper protection of freedom and security,assuring the principle of fault liability as the most basic principle of doctrine of liability fixation,defining and distinguishing the object to be protected,and finally assuring the causation to control the scope of damages.In the medical field,there is such a phenomenon: the patient in the extremely dangerous situation,the doctor has failed to diagnose the patient’s disease due to negligence,leading to the delay of the best treatment time and eventually lead to physical damage or death,when the patient suffering from cancer,the doctor did not find the disease due to negligence and thus delay the treatment of cancer,resulting in reduced or loss of survival of patients.How to effectively protect the interests of patients,the rational distribution of losses,it is an important issue of tort law.Article 54 and Article 6 of the Tort Liability Law of the People’s Republic of China stipulates the responsibility for medical damage,in which Article 54 stipulates that where any damage is caused to a patient in the course of medical treatment,if the medical institution and/or any of its medical professionals are/is at fault,the medical institution shall be liable to pay damages.However,if the patient dies or the disease deteriorated due to negligence diagnosis and treatment behavior resulting in the patient did not receive appropriate treatment in time,the hospital should bear the liability for damages?In this dissertation,when trying to solve such problems,it will first start from the foreign theories and examples to explore what kind of solutions of such problems.Some scholars believe that the "loss of survival opportunities" itself should be deemed as damage and the hospital shall undertake the liability for damages if other elements could fit the requirements of relevantlaw,which is more conducive to the protection of patients.In the meantime,some scholars hold the point that on the basis of recognizing the value of opportunity,solving such problems,the proportional causation should be proved.However,every theory has its important reasons and disadvantages,this dissertation does not make the judgement,it attempts to summarize the relevant theories on the basis of analysis of the nature of the loss of survival opportunities."Whether the loss of survival opportunities" is "interest",should the tort law provides protection to "interest" ? In the case where the existing law does not specify this,how can such an argument be given to the protection of such "interests" ? What is the basis of protection for such "lost opportunities" ? What is the damage to the loss of survival opportunities? How can we prove that there is a causation between damage and doctor’s treatment behavior and how is damage calculated?The first part of this article will begin from the development of loss of survival opportunities,understanding the development of this theory and emphasizing the theoretical study in comparative law.Professor Joseph King,a professor of American law argues,at the time of the accident,the existing disease,condition or motivation should be taken as a measure of the victim’s damaged interests.The doctor failed to diagnose the patient suffering from cancer,but even if the patient received timely diagnosis and treatment,the patient’s survival opportunities only 10%,the causation potency of which doctor did not diagnose cancer for the patient’s death was only 10%,and the major cause of the death of the patient was cancer.Comparing those two causes,the plaintiff cannot prove that there is a causation between the death of the patient and the misdiagnosis of the doctor,and that the plaintiff is unable to do so on the basis of the traditional evidence of superiority and the principle of causation which is "all or nothing".Therefore,the plaintiff cannot receive damages in terms of the 10% loss of survival opportunities resulting in the death of the results.In this regard,Professor King arguesthat although the plaintiff cannot prove that there is a causal relationship between the death of the patient and the misdiagnosis of the doctor,the plaintiff still can request damages based on the causation between the misdiagnose of doctor and the loss of survival opportunities.This dissertation also introduces the French intermediate damage theory,the Japanese degree of possibility theory and theory of personality right in Taiwan.The second part of this dissertation briefly introduces the legitimacy of the protection of the loss of survival,the object of protection by the tort law.The third part of this dissertation starts to introduce the nature of the loss of opportunity,what is the nature of the loss of the opportunity of patient? What kind of rights or interests of patient are damaged in particular cases? There are three questions.Does the patient suffer damage to the lost chance of survival itself,or other life,the right to health,or the mental damage caused by the loss of survival?In such medical cases,even if such a victim is to be protected by tort law,it is necessary to first clarify what the damaged object of victim is.On the basis of the predecessors’ theories,this dissertation puts forward the view that this dissertation agrees that the loss of survival opportunity is undoubtedly worthwhile.Due to the doctor’s negligence,the patient lost the opportunity to being treated properly which the patient should have the access to,and it leads to the patient’s condition deteriorated or the death of the patient.On the surface of the doctor’s fault did not cause damage to the patient’s body,but in fact,because the treatment is not properly involved,the original disease continue to infringe the patient’s body.In this way,the right to life and the right to health of a patient are violated,and there is no need to category the lost survival opportunity as an independent "right" or "interest" that needs protection.The fourth part of this dissertation is discussing the loss of survival opportunities and causation problems.The key point that whether or not the patient could receive the damages is the existence of the causation between the doctor’s negligent behavior and the victim disability or death.However,in the case of loss of survival,the patient’s "damage",whether it is the loss of survival opportunities,or life,physical health and mental damage,it is difficult for the patient to that "damage" and the doctor’s fault has causation.The patient may have a certain percentage of the survive,making the causal relationshipmore controversial.This part of the dissertation focuses on the theory of causation,including the traditional theory of high probability,the theory of substantive possibility and the proportion of causality and the theory of participation in medical practice in China’s judicial practice.This dissertation combines the existing theories and the judicial practice of the solution to such problemsin our country(as a reference for medical identification),agreeing that the participation of medical malpractice is not the only criterion for determining the damages,and further considers that it should also take other elements such as special conditions of patients into consideration to make a judgement.The last chapter of this dissertation is the problem of loss of survival and calculation of it.The numerical meaning of survival opportunities has significant reference value for the calculation of damages.The loss of survival opportunitiesof patients could be divided into two cases,one is the survival opportunity of patients decrease to zero,that is,the patient dies;another survival opportunities of patientsdoes not decrease to zero,that is,although the patient loss of part of the survival,but does not die.With regards to these two types of cases,there are two types of calculating the scope of the damages,one is the damages of right to life,and the other is the damages of right to health. |
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