Study On Liability For Damage Compensation For Loss Of Survival Chance

In real life,there are many cases in which some patients have lost their chances of survival or cure due to medical staff's medical faults,but few patients have filed corresponding lawsuits on the grounds of lost opportunities.Even if some plaintiffs claimed the fact of lost opportunity in their litigation claims,few people's courts responded to this in detail in their judgments.The reason for this phenomenon is that China is currently not regulating the opportunity to lose this new type of medical infringement cases,and there are no relevant guiding cases.It is difficult to provide clear guidance for judges and judicial practice.In the case of the patient's loss of chance of survival,the patient's own illness and medical negligence together cause damage,leading to uncertainty in the determination of causality.At the same time,since the loss of survival opportunities may not immediately lead to disability,death and other consequences,so what exactly is "damage" is controversial in the academic community.In judicial practice,although many courts in China believe that "loss of survival opportunity" and other similar concepts are used in their judgments,they fail to demonstrate the determination of liability for damages in detail,which leads to the vagueness of the specific application of this theory."Chance of survival" is protective and can be included in the category of personality right or legal interest of personality for protection.When the patient loses the chance of survival,it should be beneficial to relieve him,but it needs to be premised on the establishment of the liability for damages caused by the loss of opportunity.Specifically,the four aspectsof torts including missed diagnosis and misdiagnosis,subjective fault of the actor,specific fact that the patient suffered permanent damage,and cause-and-effect relationship were investigated.At the same time,in view of the defects of traditional causal relationship,China can adopt the view of proportional causal relationship when determining the causal relationship in such cases,and judge the causal relationship according to the "probability ratio" of the causal relationship.At the level of liability for damages,the loss of opportunity theory is not only applicable to the case of more than 50% loss of opportunity,but also applicable to the case of no final damage.When specific compensation,can according to person damage compensation and spirit damage compensation two big categories undertake compensation,but need to calculate separately when calculating.On the one hand,the compensation for personal injury applies to the compensation formula in "the theory of loss of opportunity only as the damage",that is,the amount of compensation = the final damage × the loss rate of survival opportunity;On the other hand,the amount of compensation for mental damage shall be determined by the people's court in light of the actual situation and at its discretion.