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病人本身患有治愈率很低(通常低于50%)的疾病,在对其救治诊疗的过程中,医生存在着过失,自身疾病和医生过失相结合导致病人治愈的机会降低甚至丧失,这类案件十分常见,但根据传统的损害和因果关系判断标准却很难得到解决。实质可能性理论、比例因果关系理论及机会丧失理论是解决这类案件的主流学说理论,分别通过改变因果关系的证明标准、转变因果关系的内涵及转变损害的概念来寻求突破。对比这三种理论,机会丧失理论更具合理性和可行性,建议将其引入我国并适用于此类医疗侵权案件。
The patient has a very low cure rate (usually less than 50%) of the disease, the diagnosis and treatment of its treatment process, there is a doctor’s own negligence, their own disease and the doctor’s failure to reduce or even eliminate the chance of patient healing, which Cases are common, but it is hard to find a solution based on the traditional criteria of damage and causality. The theory of substantial possibility, the theory of proportional causality and the theory of chance loss are the main theories to solve such cases. They seek breakthroughs by changing the standard of causation, changing the connotation of causality and changing the concept of harm respectively. Comparing these three theories, the theory of opportunity loss is more reasonable and feasible. It is suggested to introduce it into our country and to apply it to such medical tort cases.