Loss Of Chance In Medical Malpractice

In our Tort Law, the doctors and hospitals should be responsible for their wrong doings in the process of medical treatment and diagnosis, besides, in three kinds of situations, we have adopted constructive fault. In the respect of causality, we have changed the rule of constructive causality and inverted burden of proof,which were provided in our former law and judicial explanations. As a result, the patients as the victims should burden the proof to prove the cause and effect between their damages and the medical malpractice, which has no doubt increased responsibility of the patients.The basic structure of Tort Law is sharing responsibility by comparing the fault and the effect of reasons respectively. The chance of patients has been reduced or deprived due to the delay or negligence of the doctors and hospitals, thus lead to physical disability or death of patients. In these cases, the combination of the patients’ intrinsic diseases and the medical malpractice leads to patients’ final damages. We call it as the combination of many reasons leads to only one result. In these cases, should the injuring party bear the tort liability? What kind of damages the patients have? The damage should be the survival chance itself? Or patients’ physical disability or death? Or the extra personal injury, spiritual suffering and extra expenses? Maybe we can regard the damage as the right to life, the right to maintain our full body, or the right to keep healthy. Can we see the survival chance as the right to looking forward to something better, so that the chance could be protected by our Tort Law? In these cases, how could we distinguish the cause and the effect? Especially patients’ intrinsic diseases only have low cure rate, it is hard to say the medical malpractice should be the indispensable reason of the damages, the malpractice does not increase the possibility of the damages. In these cases, should the patients be protected by our Tort Law? If the injuring party should take responsibility for the patients, he should take all responsibility or only part of responsibility according to the proportion of the survival chance? The injuring party takes all responsibility, could he reduce the responsibility according to the proportion of the survival chance?In these cases, scholars and judges have many troubles. Because this issue involved many important fields in Tort Law, such as the condition of tort liability, the amount of compensation, the theories of causality, the theory of assumption causality, the theory of Egg-Shell Skull, and the adoption of evidence regulation. For protecting the patients, foreign tort laws have revised traditional tort principles, and put forward many theories, the most important theory of which is the theory of Loss-of-Chance, which was set by the France and American scholars and judges, and then adopted by scholars and judges of our Taiwan Province. The theory of Loss-of-Chance has its important value and significance. Although our legislators did not pay attention to it, our judges adopted the theory in the judicial practice. However, applying to these cases, the theory has blackspots and limits, the patients’ difficulties when proving can not be relieved by only replacing the damages as the survival chances.Therefore, we should find the essence behind the survival chance, we could regard the survival chance deprived by the injuring party as violating the right to life; we could regard the survival chance reduced by the injuring party as violating the right to maintain our full body and the right to keep healthy. Thus, it is not necessary to see the chance itself as a kind of individual personal right. But the survival chance has its important value and significance in these cases. The survival chance comes from data of epidemiology and statistics, it can reflect the possibility of disease worsen, and a way to estimate the state of patents’ organ and function. We can use it to distinguish the cause and the effect, also we can use it to calculate the specific amount of compensation. In the field of causality, we emphasize to take individuality into account. It is hard for patents to prove the specific amount of compensation, they can refer to the data. Besides, the compensation of personal right could be paid by stages, we need refer to the proportion of the survival chance.Therefore, we redefine the value and significance of the survival chance, it is helpful to find the truth behind the case, and can make the amount of compensation more reasonable. Begin with the survival rate, providing standard operated in practice, we can realize the targets of compensation and suppressibility in our Tort Law.