Study On The Legal Control Of Medical Damage

Medicine has a specialized and complex nature while medical damagesobjectively exist and cannot be avoided. Patients are the direct medical damagevictim. The damage will not only bring enduring pain to the patients and theirfamilies, but also cause huge economic losses and adverse effects to medicalinstitutions, medical staff, and even the whole society. However, medical damagescan be controlled to a certain extent by taking some control measures.Practices of the medical damage control that have been used in the developedcountries are worth learning.The medical liability insurance in the U.S. focuses onreducing consequences of medical damages, plays a good role in regulating thebehavior of medical staff; In Britain, heavy government involvements in the medicalliability insurance build a well professional environment to medical staff; JapaneseMedical Association will also make a valuable contribution to reducingconsequences of medical damages, who takes full responsibility for medical liabilityinsurance, and reduces the professional pressure of medical staff; German medicinedisputes are solved smoothly through all kinds of judicial, reducing the litigation costand saving the judicial resources.Legal method is also a good measure to control medical damage risk. In therelated legislation of medical damage, China has experienced from <The Measure onthe Handling of Medical Accidents>to <The Regulation on the Handling of MedicalAccidents>, and then <Tort Liability Law>. Legislation on liability principles andburden of proof, especially the provision for fault liability principle, fault-presuming principle and no fault liability principle in the specific situation, can affect thebehavior of both doctors and patients, and also add pressure on doctors who occupythe initiatives in diagnosis and treatment process, so that they will consciously takemeasures to control the occurrence of medical damage.The legal control of medical damage also reflects in the standard of medicaldamage liability insurance, especially in the medical liability insurance and medicalaccident insurance aspects. However, in China, these two insurances aredissatisfactory, and do not reach the expected effect, which is mainly caused by thefollowing reasons:①medical institutions don’t understandt the principle ofinsurance;②the obstacles in the system weaken the effect of the insurance;③insurance companies are lack of insurance service;④the charge mode needs to beimproved;⑤lack of sustaining policy;⑥concept of patients’ perception is hard tochange;⑦too few types of insurance. The author takes Guangzhou as an example,using questionnaire and interview as the research methods, to understand the view ofmedical staff, patients and the public in medical liability insurance and medicalaccident insurance, and in order to propose the solution more purposefully.Referring to the experiences of developed countries and the reality of ourcountry, the author put forward the following suggestions about the legal control ofmedical damage:①the liability principles and burden of proof in Medical Damageshould beapplied in different situation. Including the principle of liability withoutfault to medical damage resulted from medical products, the principle of constructivefault to medical damage resulted from medical technology, and the principle ofliability for fault to medical damage resulted from medical ethics;②the legislationof medical tort liability principles needs to be further perfected;③coercion andimprovement of medical liability insurance, including clearing the mandatory ofmedical liability insurance through the legislation, government taking the lead ofmedical liability insurance, highlighting the effect of preventing risk in medicalliability insurance, simplifying the medical dispute processing program and designingthe premium pricing method reasonably;④coercion and improvement of medicalaccident insurance, including coercing medical accident insurance through thelegislation, government strengthening the publicity, designing different kinds of insurance to different groups;⑤building an overall risk allocation mechanism.