Causation In The Medical Tort Compensation

China’s legal regulations about medical tort compensation related problems are mainly distributed in the Tort Liability Law of the People’s Republic of China(the seventh chapter 54 to 64 including 11 terms) and Regulations on Handling Medical Accidents(including 63 terms). Although we have considerable regulations about medical tort compensation, we are lack of regulations about causation in tort law. Causation is a necessary condition of liability for tort. So judges always assert the causation of medical tort compensation according to the legal precedent, other countries’ cases and theory.In author’s opinion, We should construct two steps to identify causation in tort law. The first step, those potential causes that may give rise to tort liability are identified. We are not interested in all the possible causes, but only those that were tortious. This is the tortious-conduct inquiry. Policy considerations determine whether certain conduct will be treated as tortious.The second step, after the identification of tortious conduct which may have contributed to the injury, is the application of the actual-causation requirement, which requires that the tortious conduct actually have contributed to the injury.This is the causal inquiry. At this stage it is irrelevant that there may also be other contributing factors.Based on above two steps, The author put forward three major medical tort causation difficulties:Firstly, it is uncertain to identify causation in fact between illegal act and consequences.It includs two main areas :Common dangerous behavior and severe patients. The basic theory of solving the problem are “all or nothing rules” and “survival opportunity loss theory”.The author suggest that “survival opportunity loss theory” should be applyed to solving the causation uncertainty problem and find the balance between “all or nothing rules” and “survival opportunity loss theory”.The second one is the medical tort causation interruption problem. Causation interruption problem is based on the following three reasons: 1.The third person behavior(including intent and gross negligence behavior, but except general fault); 2.Netural events(including force majeure and contingency); 3.Voluntary behavior, especially commit suicide;The third one is the medical damage on patients with special physical cause of tort problem. The author summarize the way to solving special physical cause problem: First of all, if the patient aware of his special physical and inform medical staff or medical staff should be aware of his special within the general duty even though without being informed by patient, medical staff should be responsible of the consequence; Secondly, if patient know his special physical and don’t inform medical staff and medical staff make the general medical attention still can’t acknowledge if his special physical, both parties shall be responsible for the final damage; Finally, if patients don’t know its special physical and neither does medical staff, medical staff should be in charged of.