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On Compensation Of "Lost Of Survival Chance"

Posted on:2012-12-19Degree:MasterType:Thesis
Country:ChinaCandidate:Z W PanFull Text:PDF
GTID:2166330335963486Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
In the medical infringement field, there is no doubt that a doctor should take medical malpractice responsibility if his or her negligent behavior contributes to the patient's death. However, if a doctor's negligence does not lead to a patient's death, rather reducing his chances to live, accelerating the disease to become deteriorated and speeding up the approaching of death, then is it the doctor's responsibility? This is a compensation question concerning the "lost of survival chance" that is related to the sufficient protection of a patient's interest as well as to the appropriate distribution of loss between patients and doctors.This paper focuses on the respons(?) and compensation range of lost of survival chance based on conclusion of "the lost of chance" theory's evolving process as well as different scholars'views. This will help provide a new method to solve problems when patients are not well-protected in medical disputes.This paper will illustrate the problems related to "lost of survival chance" in five parts.In the first part, I will use typical cases to put forward the core problems yet to be solved.The second part talks about the presence and development of "lost of chance" theory and explain the development path of traditional "lost of chance" theory in the field of infringement law. I will analyze the dilemma when traditional rules of tort law are used to deal with cases concerned with "lost of survival chance" and different approaches proposed by scholars. Besides, I think the "damages approach" is an effective method to handle the problem when the patient is not sufficiently protected. I will analyze those opposing views to the "lost of survival chance" theory as well. In the third part, I will analyze the theory foundation of compensation in the "lost of survival chance" and illustrate the policies on protecting survival chances, the legitimacy of survival chance as an object of protection by compensation law and the legitimacy of the "lost of survival chance" as an object of compensation.In the fourth part, I will focus on the constitution of composition, range and limits of compensation for the "lost of survival chance". I will demonstrate that the "lost of survival chance" itself can give rise to compensation. The definition of compensation is based on the difference between "decreasing chance of survival" and "completely lost of survival chance" as well as whether the original survival chance is higher than 50 percent. In terms of responsibility range, I think the damaged party should be compensated for property expenditure and mental damage. Due to the necessity of responsibility limitation, I put forward the measures to perfect relevant responsibility insurance system.In the fifth part, I will introduce the attitudes in legislation and judicial practices toward the "lost of survival chance" theory. I will also discuss the necessity and feasibility for our country to introduce this theory, and how to apply it in China.
Keywords/Search Tags:Theory of deprivation of survival chance, the legitimacy of survival chance as an object of protection, composition of responsibility, range of responsibility
PDF Full Text Request
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