| As a "good prescription" to investigate hidden dangers of diseases and promote health,all people pay more attention to physical examination.With the continuous development of physical examination,related litigation disputes followed:the examinees went to the physical examination institutions with the hope of"finding out the disease omens and treating it as soon as possible",but in some cases,the institutions failed to detect the disease omens in time.Following the logic of "putting forward problems,analyzing problems and solving problems",this paper analyzes the tort liability in physical examination,and discusses the damage compensation of such disputes,so as to provide some reference for solving the disputes injudicial practice.There are many differences between physical examination and medical treatment:physical examination is for screening hidden dangers of diseases,and it is for the people who think they are healthy.The purpose of medical treatment is to curing the sickness to save the patient,and the object of medical treatment is the patients who have already appeared discomfort.Therefore,this paper holds that such infringement cases should not be classified as "medical damage disputes",the trial of a case should not be judged by the relevant provisions of article 1218 or 1221 of the Civil Code of The People’s Republic of China in 2020,but should be judged by the provisions of article 1165 on the basis of the principle of fault liability.The act of physical examination institutions is omission,and its premise is warning to the examinees of the disease omens.There are many differences between this obligation and the obligation of informing discussed in traditional medical law in terms of theoretical basis and right basis.The main manifestations of the omission of physical examination institutions include that they should find the disease omen but not find it,and that they have found the disease omen but not give the warning tips to examinees,etc.In practice,there are different views on examinees’ damage.Some courts regard the loss of chance of survival or cure as the examinees’ damage,while some courts think that the damage is the result of examinees’ death or illness.According to the principle of self-responsibility,the loss of chance of survival should be regarded as the damage,and the essence of chance of survival should be defined as general personality right.The protection of the chance of survival makes the physical examination institutions more cautious to the examinees,and it is also the meaning of respecting the principle.The identification of causality is also one of the concerns of this paper.Most courts have only one sentence to say whether causation exists or not,and they rely heavily on the opinion of the appraisal.They directly replace the establishment process of causality with causal force.In the stage of responsibility establishment,the identification of causality should adhere to the "But For" test,and seek the factual connection between the act of physical examination institutions and the loss of chance of survival.Of course,due to the professionalism of physical examination,the court may need the help of opinion of the appraisal,but it completely replace the causal relationship demonstration process with opinion of the appraisal,otherwise the demonstration process is difficult to be convincing.The development of science and technology and the progress of medical industry can not completely break through the limitations of human understanding,which leads to the fact that physical examination institutions can’t detect some disease omens.Some physical examinees did not take the medical staff’s warning seriously,and some examinees did not tell their past medical history,which would also affect the medical staffs judgment.In this case,the physical examination institutions no longer bear the tort liability.The ultimate purpose of analyzing the liability constitution of physical examination institutions is to solve the problem of compensation for damage to the examinees.Because of the inaction of the physical examination institutions,it brings losses to the examinees ’ personal,property,spirit and so on,which is the scope of damages of the physical examination institutions.After limiting the scope of damages,this paper holds that the "all or none" calculation rules should be applied to compensate the examinees. |
