A Study On Judicial Decisions On Medical Damages Under The Circumstance Of Losing The Chance Of Survival

Because of the uncertainty of the causal relationship between the fault of the medical party and the outcome of the damage,the traditional determination of the scope of damages is difficult to achieve fair justice between doctors and patients and does not meet social expectations.The main structure of the article is as follows: Chapter 1 discusses the characteristics of the loss of survival disputes,as well as the dilemma of traditional tort liability,and the theoretical basis that can be used to break through the dilemma.Chapter 2 analyzes the characteristics of such disputes in Chinese courts and summarizes their rationality.Chapter 3 analyzes the characteristics of such disputes handled by foreign courts and the inspiration for such disputes handled by Chinese courts.Chapter 4 summarizes the theory(Chapter 1)and practice(Chapters 2 and 3),and proposes a typology of damages for loss of survival disputes in different situations.If the loss of opportunity for survival is greater than or equal to 80%,full compensation is recommended;if the loss of opportunity for survival is less than 80%,proportional compensation is recommended,and the value of the specific proportion can be determined according to the "loss of opportunity theory","proportional causation" or"causation rule"."Disputes with a very low chance of loss of survival may be subject to the "right of expectation infringement" or "breach of contract";disputes with a shortened survival period are recommended to be compensated by the medical party.In the case of shortened survival period,it is recommended that the compensation be proportional to the potential loss of survival period;in the case where the patient has not yet died or become disabled,and the ultimate outcome of the damage is uncertain,it is recommended that the "infringement of expectancy rights doctrine" or "breach of contract liability" be used to require the medical party to pay compensation.The specific amount of compensation is determined by the court through the evaluation of the loss of expectancy interest.