On Civil Liability For Medical Negligence

To resolve the stick problem of people's social life, Treatment Act of Medical Malpractices has came into being. Definitely, the implement of the act is a historical progress, it has established more perfect treatment mechnism of medical accients and patients'right protecting regulation system. Even through, the act can not cope with the practices yet: the number of medical accients increases promotely. The act has entered into a prisoner's dilemma: on the one hand, the medical fields regard the act has neglected the inherent law of medical practices, on the other hand, the patients regard the act has not give enough protection for them.What a Sphinx's secret! How to resolve? This dissertation tries to give an appropriate approach.Based on the legal technologies and legal policies, the research has went on with two paths.On the one hand, comparing with the experiences of different countries and regions, this essay analysises the elements and logics of these regulations;on the other hand ,with the angel of equilibrium of the right of both sides,after analysising the native requirements of civil liability of medical malpractices,this essay puts forward its advises to present civil liability of medical malpractices.The content of the research as following:Chapter one: argues the relationship between medical institutions and patients. Medical institutions should take liabilities of the neglience of its employees, the claims of patients direct to medical institutions. According to the basis of this relationship, the relationship between medical institutions and patients can be divided into contract relationship between medical institutions and patients, noncausation management relationship between medical institutions and patients, and obligatory medical treatment relationship between medical institutions and patients.The basic of these relationship based on the medical conduct. Concerning with the life and healthy of human being, medical conduct is ethical; beyond that, medicalconduct is based on very difficult medical science technologies, happens to diversified human bodies. Medical conduct is high risky and high professionary. The performance of medical conduct is private and discretive. These characteristics has direct affects on construction of civil liability of medical neglience.After that, the essay argues the legal fundation of the relationship between medical institutions and patients. Generally, there exists contract relationship between medical institutions and patients. The content of this contract is provided by law, so the fundation of the relationship between medical institutions and patients lies in two aspects, the one is determinated by will, the other is determinated by law. The latter is more important, medical neglience liability is tort liability. Depending on the legal practices of different states, focusing on the nature of medical neglience has no importance. The reason why medical institutions and patients relationship regulated by law lies in the reliance between the both. The patients entrust themselves to medical experts, using their professional knowledge and technology, medical experts diagnose and treat with good faith. Patients believe in the capacity guarantee of medical experts and trust their discretion. It is not proper to define the relationship between the medical institution and patients as consume relationship^ is aslo not proper to implement consumer's protection law for patients protection at present's China.Thirdly, the essay discusses the ethcial fundation of relationship between the medical institutions and patients.The relationship between the medical institutions and patients has dense ethcial color. The ethcial modes differ, the patients' right differ. From the historical angel, the autocracynism medical treatment mode can not cope with the modern ethics essential values,patients'centralism medical treament mode is the dream of us, but not realistic. Patients' right trusting medical treament mode is the appropriate one.Although the dense ethcial nature of medical treatment,medical treatment has its own inherent law, it's right to consider the pursuit ofmedical sciences while emphasizing the ethical nature of medical treatment.Basing on the patients' right trusting, the relationship between the medical institutions and patients can balance the the gap between the ethical ideas and legal regulations, resolve the contradictions between the realistic demands of professional operations between the idea of respecting the patients right.According to Patients' right trusting medical treament mode, we should place the respects of patients'personality and freedom as conception premise, accept the contractory freedom of patients,beyond that,medical practitioner should be required as experts which lies in due care liability and rational diagnosis.Chapter two focuses on the revolution of civil liability institution of medical neglience. 20th century is the century of patients'rights. The right of patients has been recognized by law.With the international and domestic campaign of patients' right, patients'centralism medical treament mode has got its popularities. Civil liabilities of medical treatment has developed promotely. On the nature of liabilities, while the Anglo-American legal system has evolved from contract liabilities to tort liabilities, the continental legal system has evolved from tort liabilities to contract liabilities. Despite of the different liability nature, the key of the problem is to design the concrete institution to protect patients effectively and balance rights and duties of doctors and patients.The due care of medical practitioners has enlarged step by step.To avoid the defects of existing verifacation rule, such as neglience deduction and experts'proof disproof, voluntary fact proof and appearance proof have been introduced in determination of the medical treatment liabilities.Causing the practices of these two proof rules, medical negliance liabilities have approxiamtely become one of the strict liabilities.New Zealand and Sweden has developed the subsititute compensation institution which is equal to strict liabilities; Anglo-American legal system has made a breakthrough to the old rules which limit the hospital liability scope in the doctor, even benevolent hospitals should takeresponsibilies of all of their employees.These campaigns have directed to the increase of medical staffs and medical institutions, the most important one is the explanation liabilies and respect liablities of patients discretion. There is no genunie strict liabilies but geunie neglience liabilies in civil liabilies of medial neglience.The extending of the civil liabilies of medical neglience has not resovle the medical neglience crisis, but aggravate it. People suspect the rationality of the extending of civil liabilies of medical neglience reasonablely. Through the economic analysis, we can verify the inherentive defects of the expanding liabilities. If the court can effectively prevent the medical malpractices with proper implement of neglience liabilities, there no excuse to carry our strict liabilitis. The further deduction is the expanding of civil liabilies has no sufficient economic reasons. The expanding of civil liabilies of medical neglience can not urge the improvement of medical services, on the contrary, it has go against to its legal aims. Information costs theory regards that if parties concerned has connected with price mechnism, the expanding liabilies mode can not protect the consumers(patients) at all, because the expanding protection has diverted to prices, and this resulted the consumer(patients)to pay by themsleves.The essence of this expanding is to accomplish the great aims of social safeguard through the civil tort system. Without resolving the medical dispute's crisis, this combination has brought serious consequences.We should face to the differnces between medical neglience liabily system and social safeguard system squarely,insist on the tort law nature of medical neglience liabily system.So, wen should treat attempts of the expanding medical neglience liabily rationally.Chapter three makes analysis on medical neglience. Medical service's provider taking responsibility on their negliences is the fundamental start point of establishment of medical civil liabilities.Medical neglience is the core conception of medical malpractices civil liabilities. While the medical staff has not performed their due care and made fault, medical neglienceconsistituted.The due care standard is the goodwill manager's due care standard.Evaluating the medical neglience should insist the objective principle.Medica] due care is the standard to allege the neglience existing or not, medical staffs should provide their medical services with due care.Medical due care can be divided into technogical due care, ethcial due care and organizing due care. It can aslo be divided into general due care and specific due care. General due care is the care liability through the medical operation, is the traditional requirement of medical practitioner.General due care can be divided into due care in dignosis, due care in medical treatment, due care in surgery and etc.Specific due care can be divided into medical transferation due care, keeping secret liability and explanation liability. Medical transferation due care is the liability of doctor to transfer the patients whom he can not provide medical services to the capable medical institution.Keeping secret liability is the liability to keep the privacy of patients,without permission of patient himself, the privacy can not be released.Explanation liablity is the liablity that lies in the comprehensive liablity of patients, the medical explanation should make to the patient himself.While the patient is short of comprehensive liability,the medical explanation should be given to the relatives of patient.The explanation liability of medical treatment include three aspects.The first one is the explanation of promise, if doctor do not perform the liability, the promise is null and void;short of this preventing elements, medical treatment can consititute injury practice.The second one is the explanation of evadation of consequences,the liability includes the dignocial treatment guide liability and medical transferation persuation liability.Without performance of these liability, can consititute general medical neglience.The third one is report liability, the liablity is resulting from the trustee's reporting liability in civil law.Because of the trusting characteristics of medical contract, doctor as the trustee has the reporting liability to patient, the report can reduce the psychologic pressures of patient.Assessing there existing neglience or not depents on objective principle, depends on medical stuffs and medical institutions has perform their due care or not.To judge the medical due care is depend on implemeting of law regulation institution and medical custom .Medical constom is the most popular standard.Beyone the foregoing, we should consider the medical treatment level, the circumstances of medical treatment, the individual elements of doctor, the urgent factor of medical treatment, and perform the permissive danger reasonable.Certifacation of medical negliance should insist invertable proof liabilty,deducing the causation relationship between neglience and damage, and permitting the medical staffs give defendences.The certifacation of medical disputes is reliable on experts'proof. The identification of medical disputes is the procedure to producing experts'proof.To the experts'proof, judge has responsibility to assess its certification effectiveness, the patients has the rights to challenge.Chapter four discuss the scope of medical neglience liability.Medical service provider should not take all liabilities produced from high risky medical practices.While damage happens, we should firstly judge there exists medical neglience or not.Medical neglience is the limitation of the medical service providers'liability.If there do exist medical neglience,wen should consider the liability scope.The medical negliance damage to body right, health right and life right.The damage to patients and their relatives.These damage can be divided into physical damage and spiritual damage.When assessing damage,we should consider the whole compensation principle, regarding of involving parties economic status and spiritual damages limitation principle.While patients has liability in these damage, we should carry out neglience offset principle.The causation relationship between medical neglience and damage is another approach to limit the medicial insititution liability.The assess of causation relationship should insist enough causation relationship principle.According to general medial professional level, medical practices can result damage, we can surethe causation relationship.The factual causation referrs as medical science causation.Interpretation of factual causation is the main task of natural science, medical science causation relationship can be carried out by medical experts.As the same time, the inducing causation, the accient participant percentage and minorities'special physique have all their respectively theoricial and practicial values.Damage do not happen but for medicial neglience, it is the general logic thought.If do not consider the percentage of risky damage, and lay all the liability on medical institutions, can result disadvantages for medical insititutions.Some European country consider the probalility distribution of risk.Chapter five discuss medical neglience liability resulting from reporting liability. Whether common law system and continental system, the sensible agreement right has been recoginized by law.Sensible agreement right belongs to patients right, it include agreement and sensibility.Regard patients' agreement as the premise of medical conduct is the main characteristics differing from traditional relationship between medical institution and patients.Even if doctors has perform due care liability and hi-techonoly beyond law's requirement, without agreement of patients, they should take civil liability.Ethitical requirement of respecting human rights has changed into human protection's legal principle.Patients discretion theory is the philosophical premise of sensible agreement right.To protect minor's sensible agreement right should be expression of non-legal conduct,and can deduce of legal conduct.Reporting liability include medical party interpretation, patients'agreement right and legal effects.As one of the effective promise's elements, the reporting liability is differ from explanation liability and general reporting liability.Without performance of this liability, the promise is null and void;short of this preventing elements, medical treatment can consititute injury practice, in civil law , without performance of this liability consititute tort of personality, patients can sue for spritual damages and property dameges. Explanation liability should beperformed by concerning medical staffs. The standards of Explanation liability have five doctrines. How to apply depends on the balance of patients' right and patients' discretion.The goal of explanation liability is make patients understand the detailed information of medical treatment, the requirement of performance is to achieve this goal. Of course, on some special environment, the explanation liablity can be omitted . Because patients' agreement and sensibility right bases on the capacity of patients. The capacity of patients is differ, patients' agreement and sensibility right is not absolute right. While facing acute disease, social whole benefits or patients' abandon of their rights, without agreement of patients, doctor have the authority to give medical treatment. To protect the agreement right, we should distribute the patients'agreement right and their relatives' right properly.Judge should make reasonable discretion according to cultural traditions.The effective performance of patients'agreement can reduce the compensating liability of medicial institution.Chapter six puts forward some advises on medial neglience law.Treatment Act of Medical Malpractices has came into being.Definitely,the implement of the act is a historical progress, it has established more perfect treatment mechnism of medical accients and patients'right protecting regulation system. Even through, Treatment Act of Medical Malpractices has its great limitation. It follows medical accident conception, abandon conception of medical neglience, have not defined the nature of medical neglience liability, have not deduced fair liability prinsiple , have not regulated the implement of court's conclusion of medical accients, have not regulated the protection rules , have not regulated the exculsive circumstances, have not regulated medical contract definitely and so on. Based on these defects, the dissertation puts forwards the tendency of medical treatment civil liability.Firstly, it should make legislation from medical accients to medical neligence, which based on civil law angel,to protect patients' rights through civil disputes'resolvation.Secondly, the law providing medical civil liability should be regarded as special law and not administrative regulation, it should be named as medical negligence law or medical services' law, which different from basic law and administrative regulation, to increase its effectiveness and resolve the disorders of these field; thirdly, it should have a revolution of legislative spirits and main content, the nature of medical civil liability should be focused on tort liability including parties'contracts' effectiveness, it should provide the due care of medical institution and medical staffs, insist negligence liability and invert proof pricinple, excluding the application of fact proof and surface proof,and definite proper causation relationship standard, and insist on limitation of spiritual damages.Make clear exception of medical negligence, develop the contents and practical principles of patients' agreement and sensibility right, handle well of the contradictions between the experts' proof and agreement and sensibility right. Make it clear that medical appraisement is just an approach to have experts' proof and not basis for judgement.Court has authority to make judgement of them while partis has right to doubt it.