An Research On The Damage Compensation For Loss Of Chance Caused By Medical Negligence

In the field of medical tort, the opportunity of patients to survive or cure reduces or even lost because of doctors delay treatment.In this constitution, should patients get compensation because of losing of chance, whether interest of chance can be included in tort law to become object which tort law can protect, is a question worth to discussing. In China, rights and interests protected by tort law do not include interest of chance in general.However, cases of loss of chance are very common and doctor-patient conflict is more and more intensified in reality.How to guarantee the opportunity benefit of patients, ensure that patients receive appropriate treatment to become a new hot topic.We can say that the question of compensation of losing of chance is not only a law question, but a policy question about society overall cost.So far,this type of case involves two core issues, that is damage and causal relation.Traditional tort law theory is difficult to protect interests of victims when faces case about losing of chance.Traditional tort law theory requires what is infringed must be rights or interests that law can protect and this infringement should be identified and knowable in litigation at least.However, in the case of losing of chance, chance itself is uncertainty and it is doubtful whether interest of chance can be protected by tort law in China.In part of casual relation, according to traditional tort law compensation idea, it needs to achieve a high degree of probability standard if wants to providence causal relation between doctors’ negligent acts and patients’ lost chance.Death and injury in patients is caused by their diseases largely and it is very hard to province that it is doctors’ negligent cause the loss of living opportunity, so that it is easy to evade responsibility for doctors.It is obviously unfair that patients have no compensation when they lose chance of survival. In order to strengthen protection about patients and to share damages reasonably between medical institutions and patients, many countries introduce theory of lost chance, include USA, France, Japan and so on, thinks chance itself is valuable and should be included in the protection system of tort law gives a remedy.We need to breakthrough traditional tort law theory when we deal with lost of chance caused by medical negligence and to seek a reasonable balance.This article is conducting such a study and attempt to resolve damage compensation about lost of chance.This article can be divided into five parts besides the introduction part:the first part introduces main content and compensation of the theory of losing of chance.the second part analysis casual relation and consider to take relaxed attitude so that proportion casual relation is perfect. the third part redefines the damage of lost of chance and considers the range of compensation should restriction,don’t need to full compensation,And introduced the foreign court on the damage calculation of four methods are compared.the fourth part begins with question of applicable in the lost of chance doctrine, to explain application of the doctrine is not random and should be refined.The fifth part analysis the present situation and determine whether we can introduce the loss of chance doctrine.