Research On The Liability For Loss Of Medical Opportunity

The medical opportunity loss is a new type of tort.Such cases frequently appear in judicial practice,and the contradiction between doctors and patients is escalating.Whether the benefit of medical opportunity can be included as the object protected by the section of tort and whether the patient’s medical opportunity damages can be compensated is of great importance to the protection of the patient’s civil rights,the rational distribution of the benefits and risks of both the doctor and the patient,and the doctor’s choice of different treatment options.Therefore,it is indeed necessary for us to study the responsibility for the loss of patients’ medical opportunities.This thesis is mainly divided into four parts: The first part briefly introduces the theory of loss of medical opportunity.Medical negligence causes partial or total loss of patients’ medical opportunities,and the theory of opportunity loss emphasizes its independence value.Although the benefits of medical opportunities are not expressly stipulated by law,they represent patient’ good expectations for the continuation of life and should belong to the range of legal interests.The second part mainly introduces the development status of the loss of liability for damage to medical opportunities in different countries and Taiwan,China,and draws lessons from the merits of adapting to China’s status quo.Although the common law system and the civil law system regard the tort disputes of the loss of medical opportunity as a causal proof problem and a new type of damage determination problem respectively,they have consistent attitudes towards the application of the theory of loss of opportunity in the field of medical tort.Under China’s current tort legal system,the introduction of the theory of loss of opportunity provides a feasible methodological basis for China to resolve disputes over the loss of medical opportunities from the theoretical and practical levels.The third part mainly studies the legislative and judicial status quo of the liability for the damage to medical opportunities in China.China currently does not include the benefits of medical opportunities in the scope of legal mediation,and it is difficult to provide legal relief for them according to the traditional theory of tort.In judicial practice,the results of such cases are varied.The main reason is that the court mistakenly regards the causal power rule as the judgment standard for the existence of causal relationship,the definition of medical negligence is too loose,and the influence of the patient’s established condition on the loss of medical opportunity is ignored.And the standard of liability for damages borne by the medical side is vague.The fourth part discusses the necessity of establishing compensation for damages caused by the loss of medical opportunities and puts forward the following suggestions on the specific application of the theory of loss of opportunities in China.First of all,the benefits of opportunity should be included in the scope of Chinese legal adjustments through the formulation of judicial interpretations to provide patients with the basis for the claim for compensation for the loss of medical opportunities;secondly,the loss of medical opportunities should be regarded as an independent compensable damage;thirdly,we should insist on applying factual causality,which is also in line with the traditional causality judgment logic;finally,the scope of liability for damage should be clarified,and the basic damage caused by the patient’s own disease should be excluded.Loss of opportunity damage and derivative damage belong to the scope of responsibility of the doctor.The law should make different treatments according to whether the patient’s disability or death results are avoided.If there is a possibility of avoidance,it should support the patient’s request for compensation with the ultimate damage result,if it is completely unavoidable,it should not.