The Research On The Medical Tort Liability For Loss Of Chance Of Survival

The loss of chance of survival is a new type of medical tort liability in recent years,the main characteristic of which lies in the loss of opportunity benefit,which makes it difficult to be included in the protection scope of traditional tort law,so it is necessary to find a new theoretical breakthrough for it.Based on the idea of "ask questions-solve problems",after exploring relevant theories and the problems in judicial practice,this paper puts forward its own opinions on the core issues of this type of infringement from the aspects of clarifying the rights and interests property of chance of survival,determining the standard of causality identification and dividing the liability for damages,in order to promote the improvement of relevant legislation and to provide guidance for the handling of similar cases in judicial practice.The first part analyzes the relevant theoretical basis,focusing on the analysis of the essence and limitation of loss of chance doctrine,proportional liability and the theory of expectation right infringement.The essence of loss of chance doctrine is to recognize the independent value of the chance of survival,but its limitation is that it is easy to cause abuse of litigation and increase the burden on the medical side.The essence of proportional liability is to take the occurrence of actual damage as the premise and proportional causality as the core,but the limitation lies in denying the independent value of chance of survival and lacking the means of relief to the simple case of loss of chance of survival.The essence of the theory of expectation right infringement is to classify the chance of survival into the expectation benefit,but its limitation lies in that the simple medical expectation is not special,and the perspective of expectation right provided is difficult to be scrutinized.The second part is the inquiry of practical problems,combined with relevant cases to discuss the relevant problems existing in China judicial practice:Firstly,lacking understanding on the property of "chance of survival".The main performance is the lack of reasoning and different expression,and confuse the fault determination and the loss of chance of survival;Secondly,causality determination is unclear.The main performance is the inconsistency determination of connotation and scope of the damage result,and use the causal force rule to replace the causality;Thirdly,the division of the liability for damages is improper.The main performance is that the proportion of compensation is basically equivalent to the degree of fault participation,and the compensation method of damages for emotional distress is not uniform.Combined with the existing theory,the third part,the fourth part and the fifth part will response to the above three categories of issues and put forward corresponding recommendations.The third part is the clarity of the property of"chance of survival",which is a prerequisite that needs to be solved in this type of tort.First of all,it should be made clear that "chance of survival" should be attributed to the general personality right in essence.As a new type of civil rights and interests closely related to personal rights and interests,there are obvious differences with special personality rights such as right to life,right to health and body right,but it accord with the definition and characteristics of general personality right,which is also in line with the legislative purpose and spirit of tort law.Secondly,it should be made clear that the loss of chance of survival has independence and can be attributed to the independent personality benefit damage litigation,which belongs to the damage fact of the stage of liability establishment.The fourth part is the determination of causality determination standard,which is the most core element in the system of constitutive elements of such tort type.For such types of infringement,the fault,the act of damage is the same as the general medical tort,and the more unique loss of chance of survival in the damage result has also been explained in the third part,so the most central element is causality.First of all,it should be clear that the "cause" and "fruit" of the formation stage of causality,and it should be between the medical negligence act and the loss of chance of survival,and the lost chance of survival should be substantive and deterministic.Secondly,we should adopt the factual causality judgment rule of "But-For".Because both the substantive factor theory and the proportional causality theory have the suspicion of relaxing the proof of causation,and all are based on the final damage as a reference."But-for" standard can not only strictly eliminate the impact of patients'illness on the loss of chance of survival,but also in line with traditional causal relationship judgment logic,so it should be applied.The fifth part is the division of liability for damages,which is quite different from the general civil compensation for tort damages.First of all,in terms of the scope of damages,there is a need for a classification discussion:The compensable damage of the mere loss of chance of survival cases includes a pure loss of chance of survival and corresponding moral damage;In cases of loss of chance of survival with the result of the final injury,if the disability and death results cannot be avoided,the medical party doesn't have fault and causality can't established,so the medical party shall not be liable for compensation.If the result of disability or death can be avoided,the compensable damage includes the loss of chance of survival,moral damage and the corresponding proportion of property and personal damage.In addition,the scope of damages must be limited by the rules of predictability;Secondly,in the calculation of the amount of damages,the traditional full compensation rules are easy to lead to excessive or insufficient compensation,proportional compensation,independent compensation,cost compensation and other ways can make up for the defects of all compensation to a certain extent.For the pure loss of chance of survival,cost compensation should be used to compensate for the additional expenses of medical expenses;For the final disability or death,the proportional compensation should be applied,and the determination of the proportion of compensation should be combined with subjective and objective,based on the identification conclusion,taking into account the patient's established condition and the chance of survival of the corresponding disease;The moral damage should be fully compensated.