The Research On The Issue Of Damage Compensation For "Loss Of Chance Of Cure Or Survival"

Regardless of in the legal theory or judicial practice in domestic and abroad, whether damage compensation for"loss of chance of cure or survival"can be put to the judicial practice exists disputes. Not only this question is a purely independent legal issue, but also in policy, it relates to overall social cost and proper allocation and balance of interest of loss between patients and medical practitioners.At present, there are no explicit stipulations on this issue in the civil legislation as well as the official draft and the scholar manuscript of civil code, thus causes the victim unable to resort to lawsuit in the name of"loss of chance of cure or survival". Therefore, this article makes a study on the issue of damage compensation for"loss of chance of cure or survival", in the hope of offering some constructive references to the elementary theory research and the concrete judicial practice of our country!This article altogether can be divided into five chapters besides the introduction part. Each chapter of main content is as follows:The first chapter firstly draws out the core issue through two typical cases which this article needs to discuss, then further analyzes the core issue by the comparative analysis method and the logical analysis method, and lists all the questions this article needs to discuss.The second chapter mainly inspectes the concerned theory and judicial practice of the countries of the common law system and the civil law system from the path of the method of comparative analysis, then demonstrates macro-examination condition of this issue, and discusses emphatically judicial precedent in American and"Encroachment of expectant right"theory in Japan. The third chapter emphatically discusses the identification of tortuous liability of the case of"loss of chance of cure or survival". After distinguishing in detail and clarifying the connotation of object under the protection of Tort Law, the conception of damage and causation in Tort, this article makes thorough discussion and description on the issue of the identification of the base of claim right,damage and causation in the case.The fourth chapter mainly evaluates the application of"loss of chance"theory from the policy perspective, through the analysis of advantage and disadvantage of the theoretical foundation of limitation of the application of this theory, then clarifies and defines the concrete scope of application.The fifth chapter inspects the issue from different aspects in our country, and then puts forward the opinion of construction of"damage compensation for loss of chance of cure or survival"system.