A Study on the Legal Causation in the Contemporary Scientific World: Focusing on Medical Malpractices
Date Issued
2012
Date
2012
Author(s)
Kuan, Cheng-Kai
Abstract
Legal causation has always been one of the most difficult parts of the law. In a specific case whether there is a causal connection between two events is often hard to decide for the fact finder, especially in cases involving scientific uncertainty and complicated forms of causation it would become an extraordinary challenge. This thesis is meant to find solutions for the causal problems our courts met in those modern-typed cases, which could be represented by medical malpractices. The causal problems should be solved by two approaches, one is to clarify the traditional concepts of legal causation, and the other is to adjust those concepts properly to better fit into the hard cases. While considering new strategies to solve causal problems, we could see more vividly the differences between civil and criminal law system and how such differences influence the understanding of legal causation.
At first, this thesis is going to look at the unique problems brought by development of modern technology, and illustrate the influences of scientific uncertainty and several complicated forms of causation by showing a series of medical cases. After that there is a thorough analysis of concept of causation per se from philosophical, scientific and legal aspects, introducing and comparing the causal theories and judgments which played significant roles within the development of legal systems. To be able to make a more accurate analysis, this thesis differentiates three issues about causation in the law: the actual (empirical) causation, the responsible causation and the proof of causation. At the end of this part, the author would suggest which of these causal theories could best serve our purpose as the best understanding of causation in the law.
In chapter 4 and 5, the thesis discusses different adjustments of the element of causation in civil and criminal law systems. In civil law systems, the thesis mainly focuses on three relatively new causal theories: the loss-of-chance theory, the proportional liability theory and the claim of probabilistic theory. In addition, the thesis would introduce a famous debate between Determinism and Indeterminism in modern physics as well as its impact on the legal area. In criminal law systems, the author studies “Unschuldsvermutung” principle and “Der Grundsatz in dubio pro reo” principle underlying our whole criminal justice system, and how the two imperatives set a limit on any modifications or adjustments that might be disadvantageous for defendants. Then the thesis is going to examine the claim of Epidemioloic causation, and the current medical identification system, which often dominates the medical malpractices cases regardless of civil or criminal one.
The last chapter is the conclusion.
Subjects
causation
medical malpractices
scientific uncertainty
complicated forms of causation
abstract causation
personal causation
NESS theory
Loss-of-chance theory
proportional liability theory
probabilistic causation
Der Grundsatz in dubio pro reo
Epidemiologic causation
medical identification system
SDGs
Type
thesis
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