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Medical Damages

Posted on:2001-07-09Degree:DoctorType:Dissertation
Country:ChinaCandidate:S H GongFull Text:PDF
GTID:1116360065950280Subject:Civil law
Abstract/Summary:PDF Full Text Request
The traditional definition of medical action, which aims at treating disease, cannot meet the needs of medical development and protecting patients. This thesis indicates that the medical action can be defined as the action that would damage the human body without doctors' medical judgement and technology.The relationship between doctors and patients can be classified as three types, medical contract, management without cause, and compulsory medical treatment.If the medical negligence has resulted in the damage to the patient, it is favorable to the patient to apply the tort liability, but when there is medical contract between doctor and patient, we recognize the concurrent liability in contract and the tort of negligence. The components of the tort liability are medical damage, medical negligence, and causality, and those of the contract liability are breach of contract, medical damage and causality.Medical damage, as one of the components of medical damage liability, mainly includes patients' death, deformity, damage to the organ and worsening of health condition.Generally, the judgement standard of medical negligence is duty of care. Moreover, it is necessary to consider the medical required standard, the specialization and regionalism and emergency of the medical action.The causality in the medical damage liability includes that in fact and in law, the former defines the establishment of liability, and the latter defines the scope of liability. All the damage resulted from medical negligence must be compensated, in the case of concurrent of plural causes, every causal action is responsible for the damage according to the strength of cause.During the lawsuit of medical damage, to mitigate the patients' burden of proof, these principles and theories may be adopted ?inversion of the burden of proof, Res Ipsa Loquitur to prove the medical negligence and causality.The subjects of the right of claim to the compensation of the medical damage are patients and their close relatives. Positive damages, negative damages and spiritual damages are respectively calculated.The Solution to Medical Mishap, which is an administrative regulation, can not be taken as the grounds of civil compensation. Medical negligence may result in administrative responsibility, criminal responsibility or civil responsibility, civil responsibility must apply the civil law. At present, we may adopt the General Rule of Civil Law and the Law of Contract. The basic solution to settle the compensation of the medical damage is to draw up the Law of the Compensation for the Medical damage.
Keywords/Search Tags:medical relation, the liability of the medical damage, the compensation for the medical damage
PDF Full Text Request
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