The Research On Medical Tort Injury Compensation For Patients In Low Cure Rates

With the incidence of the disease in low cure rates continuing to rise, the number of patients suffering from this disease is also increasing. At the hospital treatment process, the medical malpractice often occurs caused by physician’s misdiagnosis or mistreatment leading to the loss of patients’best treatment chance, however, there is a dilemma to deal with this medical malpractice. In order to protect these patients’ legal rights and interests, to achieve the law’s deterrent capabilities, and to prevent the recurrence of similar acts of medical mistakes, these patients should gain special protection when they lose chance of survival or cure because of medical negligence through breaking the traditional tort theory.Taking characteristics of the medical malpractice into account, first, the medical malpractice should be distinguished from domestic general medical infringement, and it can be solved by type of judicial response in practice to provide special protection to these patients; second, the approach of correcting traditional theory of causation should be replaced by further discussion on replacing damage. The practice in Taiwan region should be considered as the main reference approach when damage in the medical malpractice is specifically identified, of course, it also needs to be proved by other relevant laws and doctrines of the mainland; finally, considering the practice in Taiwan region has some defects which do not fit the judicial practice in the mainland, it should be amended combining with the advantages of the expectation right theory, loss of chance theory and others. And on the basic of consideration of the domestic legal environment and public policy, the existing theories need to be innovated; ultimately a unique treatment model for domestic medical malpractice can be built.