The Exploration And Application Of The Loss Of Chance Doctrine

As a popular topic of compensation for damages,The principle of the Loss of Chance Doctrine is the idea that,when the act of the offender deprives the victim of the chance to obtain benefits or avoid the occurrence of damage,the victim can claim for compensation for the loss of the chance.Although the Loss of Chance Doctrine have been widely applied in the judicial practice outside the medical field,its scope of application mainly covers the cases of contract breach or pure economic loss,and there have always been disputes over the definition of interest of chance and compensation for loss of chance outside the medical field.With the development of the theory and its practices outside the medical field,the Loss of Chance Doctrine has been gradually applied in medical negligence in America,France,Japan and Taiwan as representative regions.In the cases of medical negligence under loss of chance,the patients have a chance of recovery under normal treatment despite the fact that the patients are physically ill.However,as a result of the misdiagnosis and other negligent diagnosis and treatment given by medical staff,the patients lose part of the chance to recover,and due to which,the death of the patients or other damage are eventually caused by the illness.As a special type of tort,the causality of medical damage tort is complicated.Due to the lack of medicalexpertise,the rigid tradition of causality and the all-or-nothing rule of indemnity,it is often difficult for patients to prove the causality between medical staff's negligence and the ultimate damage they suffer,therefore,it is unfair for a patient who has suffered from the disease not to be appropriately compensated.The Loss of Chance Doctrine puts forward that the loss of the patients' chance of survival or cure caused by the negligence of diagnosis and treatment should be regarded as damage,and the probability of such chance is supported by medical statistics,and based on which the Loss of Chance Doctrine creates a new kind of harm for which the patient can claim the compensation corresponding to the extent of responsibility for the loss of chance.Thanks to the improvement of medical technology and the construction of medical big data,which make the probability of survival or cure of patients more accurately reflected,and provide strong support for the development of the Loss of Chance Doctrine in dealing with medical negligence cases.Medical negligence cases under loss of chance are not rare in China,and even increase year by year.However,there are different attitudes to the Loss of Chance Doctrine in judicial practice,and the trial results are not based on the same standard.The value and significance of introducing the Loss of Chance Doctrine lies in the fact that the compensation for the loss of patients' chance of cure or survival can be put into practice,which can better protect the rights and interests of patients in our country,and achieve the balance between compensation and restraint in our tort law.Therefore,this paper focuses on the essence of connotation and practices of the Loss of Chance Doctrine.The application of the Loss of Chance Doctrine in medical negligence mainly focuses on three issues: The first issue is the determination of the object of tort damage in this type of case,and then the second is the identification of causality,and the third one is the calculation of damages.This paper studies the Loss of Chance Doctrine based on these three problems and attempts to realize the localization of the Loss of Chance Doctrine in medical negligence.This paper conducts discussions from three aspects: In the first part,by comparing the theories and cases of the Loss of Chance Doctrine in various countries,and collecting the affirmative and negative views outside medical field,the essence ofthe Loss of Chance Doctrine and difficulties in the applicability of the theory are clearly presented.In addition,the issues including whether the chance itself has value,whether the loss of the chance can be used as the basis for claiming compensation,as well as the specific types of loss of chance in medical negligence and the solutions outside the medical field are also discussed in this part.The second part discusses the breakthrough points of the Loss of Chance Doctrine under the tort law system which include causality,calculation of the compensation for the damage,and burden of proof.As an important practicing country of the Loss of Chance Doctrine,the United States is taken as a model.By studying its historical evolution,this paper makes a comparison of the four ways in which the United States breaks through the traditional causality to solve the cases under the Loss of Chance Doctrine,and makes an in-depth analysis of the advantages of the Loss of Chance Doctrine and the latest theory Proportional Causality in terms of applicability.In terms of calculating the amount of compensation for the damages for the loss of chance,this part compares the three different formulas to obtain different compensation for damages and discusses the issue of which formula can better reflect the fairness in calculation of the compensation.Finally in the third part,whether loss of chance can ease the burden of proof are discussed in-depth.The localization process of loss of chance cannot be separated from the analysis of the current judicial situation in China.Therefore the third part firstly discusses the issue of how to solve such problems as the unclear foundation of claim right,the inconsistent scope of compensation and the insufficient quantification of objective data currently existing in the cases in China.The question of whether hearing the cases under loss of chance by consideration of the extent of fault in medical damages has the proper results or needs to be further improved is also discussed in this part.The application of the Loss of Chance Doctrine in medical negligence is not a purely independent legal issue,but also a policy issue concerning the balance between the overall medical cost and the interests of doctors and patients.Therefore,whether to localize the Loss of Chance Doctrine also needs to be considered more deeply from the perspective of medical market and cost of courtlitigation.