Research On Compensation System For Loss Of Chance In Medical Tort

In recent years,with the rapid development of society,People’s living standards have been improved considerably and the public’s ability of education has been enhanced steadily,the construction of the rule of law in our country has gradually put forward higher requirements.At a time when the doctor-patient relationship is tense,not only the level of medical personnel,and the distribution of medical resources is uneven either,the scope of the law of tort is gradually expanded,and under this context there are a series of special types of torts that are not completely applicable to traditional torts.The theme of this thesis is the related problems of opportunity loss in medical tort in our country,and the emphasis is on the recognition of opportunity loss,the clarification of causality and the refinement of damages.This kind of medical dissension seems to be out of favor,but it is actually an old disease in our country’s legal circle.The case of lost opportunity in medical tort means that the patient himself has the basic disease,but because of the medical personnel or medical institutions in the course of treatment of some fault behavior,medical tort disputes that result in a reduction in patients’ chances of recovery or survival.The medical tort belongs to the special type,which has been widely accepted in the academic circles of various countries.The loss of chance damages dispute is also the special one among the special types.In fact,the dispute of compensation for loss of opportunity in medical tort is not rare in our country,but due to the lack of explicit expression of the theory of loss of opportunity in our country’s legislation,the traditional stagnant causality and the all-or-nothing compensation regulation,it is unfair that the operation of normative judgment is difficult in judicial practice,and the party whose rights and interests are damaged can not get reasonable compensation.However,with the progress of theory and practice,represented by the United States,France,Japan and Taiwan of our country,the theory of lost opportunity no longer revolves around contract breach or economic loss,in the case of medical tort disputes also gradually applied,and countries(regions)have created their own more mature and rich solutions.As a supplement to the traditional causality theory,the theory of opportunity loss can effectively deal with the complicated cases of medical tort.This theory defines a patient’s lost chance of survival or cure as"Damage," and transforms the attribution of causality into an estimate of reduced chance,so it seems that the mature concept is indeed worth learning from.There is no doubt that the study of the theory of opportunity loss has both academic and practical value.This thesis consists of three parts:introduction,body and conclusion.The body is divided into four chapters:the first part is an overview of the basic theory of opportunity loss in medical tort;The second part is the current situation and deficiency of legislation and judicature in the field of compensation for loss of opportunity in medical tort in our country;The third part is the experience and localization enlightenment of the theory of opportunity loss in foreign countries and Taiwan Area of our country;The fourth part is a summary of the study of the relevant areas of the three applicable ways of law.The research focuses on the necessity of putting the theory of loss of opportunity into the system of tort law of our country and the feasibility of judicial practice,the determination and application of causality under the collision of new and old rules,and some problems of compensation for loss of opportunity,such as the scope of responsibility and the amount of calculation.The introduction of the theory of lost opportunity in the field of medical tort in our country can effectively alleviate the situation of patients having no access to complaints,and at the same time,to a certain extent,urge the medical staff to perform their medical obligations correctly,so as to build a scientific legal system of medical tort liability.With this pen,I hope that the future academic community can cause widespread attention,because the formation of the mature medical tort opportunity to lose the theoretical system needs time to polish.Only in order to protect the patients’ interests and balance the contradictions between doctors and patients,and to break the ice,can we provide a more harmonious and stable judicial environment for the development of our medical clinic.