Solutions To The Problem Of Uncertainty Of Causality In Medical Malpractice

The causality is a complicate problem in medical malpractice cases.According to its features, there are three risks which may cause thepatient’s damages: patient’s prior condition, risks inherent in medicalprocedures and medical malpractice. Under the traditional tort rule, itis almost impossible for the plaintiff in medical malpractice cases tobuild up the causation between the medical malpractice and patient’sultimate jury. After observing the judicial practice in the severalcountries, the same trend will be see as the court may give up the standardof burden of proof on the plaintiff under the traditional rule, developedseveral judicial approaches. After introducing the uncertainty ofcausality, this thesis analyses the features and causes of causation inmedical malpractice, and studies several typical judicial approaches.In addition, this thesis analyses the value measurement behind thedifferent approaches in detail. This article consists of the preface,three chapters and the epilogue:The preface introduces the research background and researchsignificance of this article, summing up the concerning references andintroducing the research method.Chapter I of this article discusses the uncertainty of causality inmedical malpractice, including the influence on the cognizance of tortliability, the features and causes of the uncertainty of causality inmedical malpractice.Chapter II of this article analyses the judicial approaches indifferent countries, and summarizes four typical approaches as follows:the principle of proximate cause, applying the loss of chance doctrine,reducing the burden of proof，and applying the tradition tort rule.Chapter III of this article discusses the value factorsconsidered by the court when chooses the approach, analyzing two of thefactors: the question of whether the “chance” should to be protected, and the important of the considerations of economic cost made by thejudges.The epilogue summarizes all the discussions and points in thisarticle.