On The Relief Of The Loss Of Patient’s Survival Chance

There are more and more cases of loss of survival chance in our country,which are different from medical damage cases where negligent diagnosis and treatment directly lead to patient’s casualties.In such kind of cases,medical misconduct such as misdiagnosis only aggravates the patient’s established condition,which leads to a reduction in the patient’s survival chance.The death of the patient is mainly caused by its own disease.Because of this,the traditional theory of causality is difficult to apply directly to such kind of cases,which leads to different judicial practice judgments.Therefore,this paper,guided by the problems faced in judicial adjudication,advocates relief for the loss of survival chance interests of patients,and explores the relief path for the loss of survival chance interests,in order to provide theoretical reference for justice.This paper is divided into four parts except the introduction.The main contents are as follows:The first part is to sort out the problems faced by judicial practice.The main research object of this paper is the cases selected by taking survival chance as the key word and medical damage liability case as the cause of action.After combing,it can be seen that there are mainly three problems in the judgment of such cases: whether to grant relief for the loss of survival chance interests,the unreasonable basis for the determination of liability,and the fuzzy standard for determining the amount of compensation.The second part is to prove that relief should be provided for loss of survival chance interests.The view of excluding compensation for loss of chance on the grounds that loss of chance is not certain is not valid.This is because not only the opportunity itself has objective intrinsic value,but also the loss of chance can be quantified by current technology.On the contrary,from the point of view that the legitimate rights and interests such as personality interests,expected interests and independent decision-making rights should be protected,there is a legitimate basis for the protection of rights and interests to provide relief for the loss of survival chance.In addition,from the perspective of the practical needs of alleviating social contradictions and preventing torts,it is necessary to provide relief for the loss of survival chance.The third part is to explore the relief path for the loss of survival chance.At present,there are mainly the theories of "proportional causality" and " loss of chance" and two corresponding relief paths in theory and practice.The rule of causality applicable to judicial practice in our country is essentially the theory of proportional causality.Compared with the proportional causality theory and the causality rule,the loss of chance theory is not only conducive to the objectivity and accuracy of the determination of liability,but also conducive to the fairness of the calculation of the amount of damages.Therefore,our country should adopt the loss of chance theory to solve the current problems.Compared with the practical application of the loss of chance theory in the US judicial practice,French judicial practice pays more attention to assessing its authenticity when determining survival chance,and is more in line with the actual situation of the case when calculating the amount of damages,and has a relatively unified adjudication standard on whether to take the occurrence of the final damage as the premise of exercising the right to claim damages.The fourth part is to construct the localized relief path under the loss of chance theory.In the stage of establishment of liability,in view of the identification of the elements of damage,it is emphasized that there is an inherent survival chance and that the survival chance has been impaired.The inherent survival chance must be real and its probability is not limited to less than 50%.The occurrence of ultimate damage is not a necessary condition for the loss of survival chance.In view of the identification of the elements of causality,it is emphasized not only to pay attention to the lead time bias in order to accurately judge the existence of causality,but also not to take high probability as the standard of proof.In view of the determination of the proportion of loss of chance,it is advocated to establish an identification mechanism with the assistance of medical empirical data and medical damage identification as the main reference,which requires judicial practice to unify the standard of medical damage identification and screen the accuracy of data selection.In the stage of damages,the medical institution should only compensate for the additional losses caused by the medical negligence on the basis of the patient’s established condition.Specifically,in view of the death compensation,it is emphasized that it belongs to the compensation item only when the survival chance is completely lost and the patient dies,and it is advocated to multiply the proportion of the identified the loss of chance by the total amount of the fixed compensation in the calculation method.In view of the expenses incurred during the treatment period,it is advocated that according to the specific analysis of the causal relationship between expenses and medical negligence,there are mainly three situations including full compensation,non-compensation and compensation according to the proportion of causality.In view of the compensation for mental damage,it is emphasized that it does not belong to the project of proportional compensation.