医疗过失引起的机会丧失损害赔偿研究

发布时间：2018-03-17 21:33

本文选题：机会丧失　切入点：因果关系　出处：《山东大学》2015年硕士论文　论文类型：学位论文

【摘要】：在医疗侵权领域,因为医生延误诊治导致患者存活或治愈机会减少甚至丧失的情况并不少见。这种情况下,患者的机会丧失应否获得赔偿,机会利益能否纳入侵权法的保护范围之内,成为侵权法保护的客体,都是值得去探讨的问题。在我国,侵权法所保护的权利和利益一般是不包括机会利益的。但是,现实中生存或治愈机会丧失的案例层出不穷,医患矛盾冲突愈演愈烈,如何保障患者的机会利益,确保患者得到适当的治疗成为一个新的热点问题。可以说,医疗过失造成的对于机会丧失的损害赔偿不仅是法律方面的问题,也是一个社会政策问题关乎社会整体成本。到目前为止,此类案件中的两个关键问题主要涉及到损害和因果关系。传统的侵权理论在机会丧失案件面前,常常难以使被害人的利益得到很好的保护。对于损害,传统的侵权法理论一般要求,被加害的必须是法律保护的权利或利益,而且这种损害至少在诉讼中应是确定的和已知的。然而,机会丧失案件中,机会本身具有不确定性,机会利益能不能成为侵权法保护的利益,在我国不无疑问。对于因果关系,按传统的侵权责任赔偿理念,要证明医生的过失行为与患者机会丧失之间达到高度盖然性的因果关系。患者的死亡或伤残很大程度上是由自身疾病引起的,很难证明医疗方的过失是造成生存机会丧失的必要条件,医生很容易逃避责任。患者在存活机会丧失后却得不到赔偿,明显有悖公平。为了充分保护患者的权益以及在医生和患者之间合理的分配责任,许多国家包括美国、法国、日本等都引入了机会丧失理论来处理医疗过失问题,认为机会是有价值的,应当纳入侵权法的保护体系给予救济。处理医疗过失引起的机会丧失损害赔偿案件时,我们要对传统的侵权行为法理论进行突破,探索合理的平衡：一方面确保公平正义的法律价值的实现,另一方面维护法律的稳定性。本文基于这样的目的进行研究,试图找到一条解决机会丧失损害赔偿问题的法律路径。本文分为五个部分：第一部分介绍机会丧失理论的主要内容和赔偿的理论依据,并对机会丧失理论在各国的发展进行了探究；第二部分对因果关系进行分析,认为应采取宽松的态度,采比例因果关系说为宜；第三部分对机会丧失的损害进行重新界定,认为损害赔偿的范围应以被害人丧失的机会为限,不必全部赔偿；介绍了外国法院在损害计算上的四种方法并加以比较：第四部分从机会丧失理论的适用产生的问题入手,说明机会丧失理论适用并不是随意的,应对其进行限定；第五部分对我国当前状况进行分析,对我国能否引入机会丧失理论进行考量。
[Abstract]:In the area of medical abuse, it is not uncommon for a patient to have a reduced or lost chance of survival or cure as a result of delayed treatment by a doctor. In this case, should the patient's loss of opportunity be compensated, It is worth discussing whether opportunity interests can be included in the scope of protection of tort law and become the object of tort law protection. In our country, the rights and interests protected by tort law generally do not include opportunity interests. In reality, there are endless cases of loss of chances of survival or cure, and conflicts between doctors and patients become more and more serious. How to protect the opportunity interests of patients and ensure that patients get proper treatment has become a new hot issue. Compensation for loss of opportunity caused by medical negligence is not only a legal issue, but also a social policy issue that concerns the cost of society as a whole. The two key issues in such cases are mainly related to damage and causality. Traditional tort theory is often difficult to protect the interests of the victim in the face of a case of loss of opportunity. Traditional tort law theory generally requires that the harm must be caused by the rights or interests protected by the law, and that such damage should at least be certain and known in the proceedings. However, in the case of loss of opportunity, the opportunity itself is uncertain. Whether the opportunity interests can be protected by tort law is not without doubt in our country. For causality, according to the traditional concept of tort liability compensation, To prove that there is a high degree of causality between the doctor's negligent behavior and the patient's loss of opportunity. A patient's death or disability is largely caused by his own illness. It is difficult to prove that medical negligence is a necessary condition for loss of chances of survival. Doctors can easily evade responsibility. Patients who have lost their chances of survival are not compensated. It is clearly contrary to fairness. In order to fully protect the rights of patients and to properly distribute responsibilities between doctors and patients, many countries, including the United States, France, and Japan, have introduced the theory of loss of opportunity to deal with medical negligence. It is believed that opportunities are valuable and should be brought into the protection system of tort law to provide relief. When dealing with cases of loss of opportunity and compensation for damages caused by medical negligence, we should break through the traditional theory of tort law. To explore a reasonable balance: on the one hand to ensure the realization of the legal value of fairness and justice, on the other hand, to maintain the stability of the law. This paper is divided into five parts: the first part introduces the main contents of the theory of loss of opportunity and the theoretical basis of compensation. In the second part, the author analyzes the causality and thinks that it is appropriate to adopt the theory of proportional causality, and the third part redefines the damage caused by the loss of opportunity. The author considers that the scope of compensation for damages should be limited to the opportunities lost by the victims, and does not need full compensation. This paper introduces and compares four methods used by foreign courts in the calculation of damages: part 4th begins with the problems arising from the application of the theory of loss of opportunity. It shows that the application of the theory of opportunity loss is not random and should be limited. Part 5th analyzes the current situation of our country and considers whether we can introduce the theory of loss of opportunity.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923

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