Research On Damages For Lost Chance Of Survival In Medical Tort

Loss of patient’s chance of survival is a new type of medical dispute that has emerged in recent years,which can be expressed as follows:if a patient has a disease and has a certain percentage of chance of survival,and the medical party acts negligently at this time and reduces the percentage of chance of survival,resulting in loss of chance of survival,the patient eventually suffers death or other damages.The patient’s chance of survival is usually expressed as a probability,which is called "opportunity benefits" by the public,which is different from the damage in the traditional tort law.At present,the Civil Code has general provisions on the objects protected by tort law and provides for medical damage liability in Chapter 6,while specifying the constituent elements and compensation standards,but there are no clear provisions to protect the chance for survival.In judicial practice,there are cases in which patients’ chances of survival are lost,but there is no uniform standard because the law does not explicitly provide for it.The following differences exist between loss of survival cases and general medical tort cases:if loss of survival is included in the tort law protection system,what is the basis of its rights;if so,how should damage and causation be determined;after liability is established,how to define the size of the possibility of survival and how should the scope of compensation of the medical party be determined,etc.Therefore,the core of the article is to try to solve the theoretical dilemma and practical difficulties brought by the loss of chance of survival cases within the framework of the existing infringement system in China,and to provide a feasible path for the resolution of the cases.The paper consists of an introduction,a body and a conclusion,of which the body is divided into four chapters.The first chapter introduces the loss of chance theory and the current development of loss of patient survival chance cases abroad and in China.The first section introduces the core elements of the loss of chance theory,and on this basis analyzes the characteristics of loss of patient’s survival opportunity cases.The second section compares and analyzes the legislative examples in various foreign regions to clearly show the nature and dilemma of loss of survival chance application in medical tort,and discusses the current status of legislation and judicial practice of loss of survival opportunity cases in China.The second chapter analyzes the basis of the claim right.The first section analyzes the difference between loss of survival cases and general medical tort cases,and the difficulty of finding a directly applicable legal provision for "chance to live" under our tort law system.The second section affirms that the chance to live is protected by tort law.The third section analyzes the basis of the claim right,and there are two theoretical theories:one is to protect the patient’s chance of survival under the right system,and the other is to classify it as an independent right under the system of other personality interests.Through comparative analysis,it is applicable and feasible to include the chance of survival into the legal system of the right to life for protection when the patient dies;when the patient does not die,it is applicable and feasible to include the opportunity of survival into the legal system of the right to body and health for protection.The third chapter focuses on the breaking point of the patient’s loss of chance of survival type cases under the tort law system,including damages and causation.The first section identifies the damages that should be compensated in the case as the damages caused by the medical negligence act that worsened the patient’s original disease,rather than the total damages caused by the combination with the patient’s original disease.The second section compares and analyzes four paths to break through the difficulty of proving causation,focusing on comparing the loss of opportunity theory and proportional causation theory,and affirming that the path of combining proportional causation and proportional liability is more feasible to apply in China.The third section is based on the conclusion of the analysis of damage and causation,and limits the three scopes of application of the proportional causation theory.The fourth chapter explores the rules of compensation for loss of patient’s chance of survival.The first section first clarifies the scope of compensation for material damages,and determines the calculation of material damages in order to determine the amount of material damages in loss of survival chance cases.The second section clarifies that the specific amount of compensation for moral damages shall be determined by the court based on the actual circumstances and in accordance with the discretionary power.