醫療過失:因果關係
楊智傑
因果關係分類
• Factual causation事實上因果關係
– But-for test若不是標準
• Legal causation or proximate causation法
律上因果關係
無法證明癌症原因
• In Kramer Service, Inc. v. Wilkins, 1865 So. 625
(Miss. 1939) (SATL 4th ed., p.359), the court
held that the plaintiff had failed to introduce
sufficient evidence to support a jury finding that
a negligently caused cut on the plaintiff’s
forehead(前額) had caused the plaintiff to
develop cancer. One expert testified that there
was no causal relationship between the cut and
cancer, and the other estimated the chances at
only one in a hundred.
陪審團無法決定
• Based on that evidence, the jury could not
find that the cancer more likely than not
was caused by the defendant’s conduct.
Moreover, because the case involved a
complex medical question, the jury could
not rely on common knowledge to remedy
the deficiency(不足、缺乏) in expert
testimony, and the award of damages for
cancer was reversed(撤銷、推翻).
錯失機會
• Because a defendant’s conduct must more
likely than not have caused harm to the
plaintiff, it is important to consider what
qualifies as harm.
錯失機會也可以請求救濟
• A substantial majority of the courts that
have considered the issue hold that the
loss of a chance to cure a disease or
other medical problem qualifies as a type
of harm for which recovery is available.
• If that is true, then the plaintiff must prove
that but for(若沒有) the defendant’s
tortious conduct, the chance would not
have been lost.
計算損害方式不同
• Many decisions speak of liability for
increases risk of harm, rather than for loss
of a chance of survival, but the concepts
are similar, if not identical(同一). Courts
permitting recovery under the loss-of-achance rule have embraced differing
approaches in calculating(計算)
damages.
由陪審團決定
• Some courts leave assessment of damages
to the discretion(裁量) of the jury based on
evidence of the plaintiff’s opportunity for
survival and factors pertinent to(相關) the
individual plaintiff’s circumstances.
或者用喪失機會乘上損害
• Other courts multiply the lost percentage
chance of survival by the damages that
could be recovered in a wrongful-death
case; some of these courts allow
additional damages for heightened mental
anguish(極度痛苦) or physical pain.
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醫療過失:因果關係