医疗生存机会丧失的损害赔偿:司法困境与制度应对

Compensation for Loss of Chance of Survival: Judicial Dilemma and Institutional Response

我国因医疗过失而导致患者生存机会丧失的案件逐渐多发。但是,由于损害概念僵化、因果关系认定严格和赔偿标准模糊,传统的侵权赔偿理论难以进行有效的应对,法院裁判也存在着一定的混乱。在比较法上,诞生于美国的生存机会丧失理论将患者生存机会丧失作为损害本身,并根据医疗机构的过错程度和原因力大小进行比例赔偿,能够妥善解决生存机会丧失的损害赔偿问题。来自理论和实务两方面的分析表明,我国应当引入生存机会丧失理论并进行适当的改造,实现患者权益保护和诊疗自由的有效平衡。

There are more and more cases of loss of chance of survival due to medical negligence in China.However, because of the rigid concept of damage, the strict determination of causality and the ambiguity of compensation standards, the traditional tort compensation is difficult to deal with it, and court judgments also have some confusion. In the comparative law, loss of chance of survival takes the loss of survival as the damage itself, and it calculates the amount of compensation according to the medical institution’ fault, which can properly solve the amount of damages.The analysis from both theory and practice shows that we should introduce the theory of loss of chance, which can achieve an effective balance between the protection of patients’ rights and the freedom of diagnosis and treatment.