| In recent years,due to the complexity of medical disputes and the increasing awareness of citizens’ rights,people are more inclined to resort to law for medical disputes,and the loss of chance in medical tort case are also increasing year by year in judicial practice.If medical disputes can not be handled timely and properly,patients will often seek private relief,which leads to the occurrence of medical troubles.Therefore,it is very important to effectively solve the dispute about the loss of chance in medical case to build a harmonious doctor-patient relationship.The medical dispute of loss of chance in medical damage belongs to the category of civil tort dispute,but it has its own characteristics.Patients in loss of chance cases with the damage caused by the negligence of medical institutions,not only in patients with both the condition of the role of also cannot be ignored,the two together,unable to determine the occurrence how much contribution to the damage reason,in addition to individual differences of patients and medical level and other factors,which is traditionally shown “more because of a fruit”.At present,there is no unified judgment standard and clear legal provisions for such cases in China,so it is difficult to deal with them in a standardized way in judicial practice.Loss chance cases in the judicial practice has accumulated certain experience,but the results are not so good,through the statistical analysis of the lost chance cases,it is found that the second trial rate of such cases is high,the basis of the judge’s judgment is different,and the reasoning of the judgment documents is insufficient,similar case often get the judgement is not unified,the fundamental reasons of this phenomenon lies in the medical tort case of chance loss causality complex,professional medical knowledge and the legal system in this aspect blank in our country.First of all,the law does not directly stipulate the loss of medical chance,which leads to the inconsistency in the basis of judgment of the court.Judgments based on the medical contract relationship are usually based on the protection clause of the right to life and health of citizens,which leads to the lack of rationality in the judgment documents of the court,and the judgment results are difficult to be convinced by the parties.Secondly,the standard of proof for medical tort related to the Tort Liability Code of the Civil Code should be applied in a uniform way,that is,the standard of proof should be highly probable,and it is difficult to apply to the special civil tort cases such as the loss of chance in the medical damage.Thirdly,in the identification of causality,the final damage results of patients are taken as the premise of damage compensation,and the participation of medical institutions in the final damage results of patients is excessively dependent on the appraisal opinions of appraisal institutions.Finally,in terms of damages,the all-or-nothing compensation method and the extensive calculation method are too general and absolute,making it difficult to properly compensate the losses suffered by the parties concerned.Many foreign countries adopt the theory of loss of chance in the case of compensation for loss of chance in medical damage and have developed a more systematic and mature solution according to their national conditions.Chance theory,as a supplementary measure to the traditional causality theory,can effectively deal with the uncertain cases of loss of opportunity compensation in medical damage.In foreign countries,the theory of loss of chance generally adopted in the cases of loss of chance itself as “damage”,which transforms the difficulty in the determination of causality into the judgment of loss of chance.Such a mature theory is worthy of reference,but the independent cause of action has a big impact on the current tort law system in China.Combined with the judicial practice of other countries in such cases,it is more suitable for China to properly expend the interpretation of “damage” in the liability for medical damage in the Civil Code in such cases,loss chance as object should be brought into the system of personality right for protection,and the corresponding causality proof standard and proportional compensation standard are adopted to effectively solve the difficulties faced by the loss of chance compensation in medical damage,and to construct a scientific legal system of medical tort liability. |
