Research On Damages Of Wrongful Birth Under The Theory Of Loss Of Chance

With the expansion of the scope of maternal diagnosis and the improvement of accuracy,prenatal skills provides more details on the condition of the fetus,which even becomes a determine factor in the choice of continuing or terminating pregnancy as well as makes contribution to preventing the birth of deformed children and improving the overall population quality.However,doctor's failure to detect the fetus' s congenital disability which should have been detected or timely notify parents of the test results after diagnosis,leads to the loss of chance to termination of pregnancy,which is supposed to help avoid the birth of deformed children.As a result,increasing number of litigation appears and requires for damages.Scholars also become interested in such problem and provide different kinds of opinion related to determining fault,causation and damages in “wrong birth”.Through methods like case analysis,literature analysis,comparative analysis,this paper firstly distinguishes “wrong birth” from relevant concepts,defines the defects acknowledged in the perspective of Tort law.In the second chapter,qualification for both parents and deformed children to sue as plaintiff with feasibility and legality are discussed and acknowledged.Meanwhile,domestic practice which solves “wrongful birth” and “wrongful life” problems in a “mixed litigation” is a reasonable choice,but parents and children should be identified separately related to compensation including medical care,care,nutrition,loss of work,education,disability appliances,mental damage,disability or death compensation.Bases on inconsistency in domestic regulations and rules regarding malpractice,the third chapter tries to explain the feasibility and merit of improve protection towards the plaintiff through Loss of Chance Theory.According to comparative analysis between domestic and international theory and summary of domestic cases,the fourth chapter analyzes reasons for and scope of damages,and proposes to enlarge compensation subject and items by adopting Loss of Chance Theory.However,considering China's imperfect medical insurance system,the tension between doctors and patients,as well as the need to protect enthusiasm of health care practitioners,the liability of the defendant should be and could be clearly and reasonably confined through determining 'opportunity' in the Loss of Chance Theory.