The Loss Of Chance Doctrine In Medical Tort Cases

With the development of society and the emergence of various complex issues,the scope of the tort law has gradually expanded,and a series of special types of infringement that do not fully apply to the traditional tort law have emerged.The Loss of Chance Doctrine in medical infringement discussed in this paper is a new issue that has received increasing attention in recent years.The main content of the theory is that “when the defendant's infringement destroys or reduces the opportunity for the plaintiff to obtain more favorable results,the plaintiff can claim compensation for the lost chance.The Loss of Chance Doctrine appears earlier in the jurisprudence and theory of the common law system.The constituent elements of The Loss of Chance Doctrine include the existence of a given condition,the doctor's negligence,the causation,and the damage.The influence of the established condition on the damage outcome is a key factor in distinguishing the medical damage from the loss of opportunity and the general medical damage case.In The Loss of Chance Doctrine,the core focus and main issues of the dispute are:1.The basis of the claim;Second,the proof of causation;3.The method of calculating damages.This article attempts to start from these aspects,comprehensively discuss the application of the theory of opportunity loss in medical infringement,existing problems and possible solutions.In our country,the study of the loss of chance doctrine is still a relatively new field.As a statute country,China does not currently provide specific protection for the loss of chance through specific legislation.In traditional theory,losses need to becharacterized by certainty.It is worth discussing whether loss of chance with certain uncertainty can be protected.In judicial practice,cases of loss of survival or cure for patients are not uncommon,but the number of cases that have been brought to court on the grounds of loss of patient opportunities is not large,and most of them still claim compensation in accordance with ordinary medical damage.Judgment documents referring to related concepts are also mainly concentrated after 2010,proving that such cases are still a very new form of medical tort liability for China.Since there is no clear legal stipulation,there is no uniform standard for the judgments and explanations of damages against the “loss of opportunity”.The judicial documents are very simple and vague for the argumentation,and the terms are different.Different judgments with similar situation have occurred from time to time.With regard to the basis of claims,there are several different theories in theory:the first is to incorporate survival opportunities into the existing system of personality rights for protection.Personality rights include the right to life and the right to health,etc.These rights are the rights and interests clearly stipulated in China's tort law.The identification and certification standards are relatively clear and operability.It is also the path commonly used by judges in judicial practice of lost opportunities.The second is to protect it by right of autonomy.The right of autonomy says that because the medical staff's negligence leads the patient to lose the opportunity to choose the right treatment,the opportunity to find a better solution is deprived of the patient's reasonable choice of autonomy.The third theory is that the chance of survival is a kind of expectation.The theory holds that the medical itself is based on the premise of the patient's disease.The medical institution and the patient are bound by the medical contract,although the cure of the disease cannot be used as the target of the medical contract.However,getting the proper diagnosis and treatment that is appropriate to the medical level at the time is the most fundamental benefit that the patient pursues and expects.The doctor's negligent behavior has failed the patient's expectation of reasonable and correct diagnosis and treatment.The fourth theory holds that the opportunity itself is an independent interest.The “loss of chance” itself should be recognized as a new type of damage in the tort law.The lost opportunity for survival and the opportunity for healing have unique value.It does not depend on the right to life,health,etc.and exists independently and is compensable.In short,regardless of the theory,the patient is given appropriate treatment to obtain the survival opportunities and cure opportunities that should be protected under the existingmedical level.When this right is violated,the patient has the right to request medical personnel or medical institutions give compensation.This paper believes that since the right of personality is the legal benefit of the protection of tort law in China,it provides convenience for judges to use this theory to explain.When the personality legality is adjusted,the patient's rights and interests can be properly protected,and it is not necessary to otherwise separate them.With regard to causation,the influence of the patient's established ill condition on the final damage outcome is completely beyond the “negligible” category.It is not only an important factor causing the damage,but even plays a decisive role in some cases,and the doctor's negligence treatment may only play a role in intensifying the development of the disease,thus proving that the traditional theoretical causation is more difficult.In the Anglo-American legal system,the standard of proof of causation has also undergone several stages of development.In the traditional theory of tort causation,the “but for” rule,the “preponderance of probability evidence rule” and the“all or nothing rule” are important cornerstones.The medical diagnosis and treatment cases involving the loss of chance still use the traditional causation relationship at the beginning as the theoretical basis of the judgment,and compare the value of the patient's existing condition to the decrease in the survival rate of the patient,in order to observe which factor has a greater impact on the survival probability of the patient,and decidewhether to interrupt the causation relationship between the doctor's negligence treatment and the patient's loss of chance.The traditional theory of causality began to loosen in the subsequent judicial decisions,and there were rules of evidence for loose standards.It has emerged the substantial factor rule and “the theory of increasing the risk ” which means the patient's risk of damage increases after medical negligence and the risk of negligence does cause a certain adverse medical outcome,the causation is confirmed.With the further development of the theory,it is realized that the traditional “all or nothing” theory that if the causal relationship proves to reach51%,all compensation will be made,and if the causal relationship proves only 49%,all will not be compensated cannot meet the need.The theory of proportional causation has emerged because of excessive compensation or insufficient compensation.Proportional causality is only proved by the proportion of the likelihood of causality,without the need to prove the existence of causality,only the possibility of causality.In addition to this path,the civil law system adopted another path,expanding the concept of damage.This method will recognize the loss of chance as an independent type of damage.It is only proof that it is no longer a “causal relationship between injuring behavior and ultimate damage” but “causal relationship between injuring behavior and loss of chance itself”.With regard to the calculation of liability,first of all,the scope of liability for loss of damages in medical infringement should be limited to the damage caused by the loss of chance,such as additional personal injury,mental damage and economic damage caused by the disease as a result of the doctor's misconduct.And exclude the underlying damage caused by previous diseases.The premise of the need to have a ultimate damage to file a loss of chance suit is a controversial part.How to calculate the amount of damages for this particular type of infringement,there are “all or nothing” compensation,proportional compensation,and judges' discretionary compensation.In view of the existing practical experience in China,China has adopted the spirit of proportional responsibility to a certain extent.However,in the process of relying on judicial appraisal to judge causality and liability,the term “injury participation” is confused to some extent.The concept of a proportional relationship between medical negligence and other causes confuses the medically statistically probabilistic relationship between fault and damage that should be accounted for.Finally,this paper proposes that creating a new type of right or legal interest may bring about an impact on legal stability.Since all medical negligence cases can be resolved as the loss of survival chance,the survival opportunity as an independent protected legal interest will easily lead to a situation of abuse,which will not only increase the judicial cost and public insurance,but also increase the defense.If using the path of loosen standard of proof of causation,the proportional causal relationship provides the possibility to solve the opportunity loss.In calculating the specific compensation amount,combined with the current judicial practice of China's current loss of chance case,we can combine the medical appraisal conclusion and judge's discretion based on the case to get a fairer judgment.When using the "probability" standard,it is necessary to consider statistical data,medical appraisal,expert opinion,and the patient's own comprehensive status,etc.,to establish a a relatively reasonableand fair way to prove the specific amount of compensation.