| With the enhancement of people’s legal awareness and awareness of safeguarding rights according to law,many new types of cases appear in people’s vision.What is different from the general medical damage dispute cases is the loss of chance medical damage dispute cases with special manifestations,specifically,it means that the patient’s chance of cure or survival is impaired or even lost due to the medical institution’s misdiagnosis,and the medical institution shall bear the corresponding compensation liability for this part of the damage.At present,the Civil Code of the People’s Republic of China and other laws and regulations and judicial interpretations only stipulate the general rules of medical damage compensation,while the rules of medical damage compensation for loss of chance are not clearly stipulated,so the handling of such cases has become a difficult problem for judges in the application of law.In judicial practice,different courts have different attitudes towards the concept of "loss of opportunity",and the trial results are different,and few courts have responded in detail in their court verdicts.With the development of society and the improvement of medical level,the number of disputes of loss of chance in medical infringement are increasing gradually,how to determine and assign responsibility reasonably and fairly has become an important problem faced by the court in such cases.This article focuses on the problems in the dispute of loss of chance in medical infringement,and explores the way to solve the dispute of medical dispute from the perspective of theory and practice.First of all,the patient’s loss of chance should be recognized as the object protected by tort liability in the Civil Code of the People’s Republic of China,it advocates relief for the loss of benefits to the patient’s chance of survival;Secondly,to sort out cases of loss of chance medical tort disputes in our country’s judicial practice,find the key of the problem,and explore the relief path for patients’ loss of chance benefit;When judging the causal relationship between the medical negligence and the consequences of damage,the dichotomy of the causal relationship between fact and law should be adhered to,so that the damages for the loss of the patient’s chance of survival can be put into practice;Finally,when calculating the compensation for damage,based on the appraisal conclusion,the patient’s own situation and other factors in the case should be considered comprehensively,and the liability should be reasonably divided according to the degree and scope of the influence of the medical behavior on the damage result,so as to calculate the amount of compensation that the medical party should undertake as accurately as possible. |
