The Identification Of Medical Malpractice Damages

With the development of medical science and technology, popularization of legal knowledge and the promotion of right safeguarding consciousness, cases on medical accident disputes are on the surging national widely. The intense occurrence of medical accidents can not only affect the rights and interests of the patients, but also the normal function of the medical facilities and the dignity of faculty of the hospitals, hence affect the harmony and stability of society as a whole. This article focus on the definition of medical accident and medical accident damages, then gives a systematic study on medical accident disputes and many legal issues concerning the legislation of Macao Medical Accident Law.This study includes the following seven parts: Introduction, definition of medical action, medical accident and the placement of Macao Medical Accident Law, definition of medical malpractice, no-fault medical accident compensation institution, burden of proof in medical accident, authentication of medical accident, damages on medical accident.Introduction: This part is mainly on the background and significance of this study; Scope and key points of this study; resources of the materials and methods of this study. We can have a better understanding of the content of this study with the help of this introduction.Chapter One: Medical action. This is the starting point of this article. This Chapter can be further divided into three parts: definition and scope of medical action; classification of medical action; comments on the views on medical action. We believe that although there are much different kind of views on the nature of medical action, and many kind of classification to it, we can still classify it into two kinds: broad sense and narrow sense. Because we are studying medical accident compensation, so it might be proper to begin with narrow sense of medical action. In order to make later discussion easier to understand, we define medical action as follows: the conducts that for the purposes of diagnosing, treating and preventing diseases, and the conducts of helping birth, abortion, health care, cosmetic surgery, gender-transformation, and all the other activities that could promote the medical technology and better the curing of diseases.Chapter Two: Definition to medical accident , its scope, and the placement of Macao Medical Accidents Law. The Regulation on the Handling of Medical Accidents of inland China defines medical accident as medical malpractice, as distinguished with common medical harms. Macao law had accepted it as the content of its Medical Accident Law. Then we should ask: What's the significance of it? After a comparative study on it I believe that this is a heritage and innovation to the dominant theorem. This will become the guidance to legislation and theoretical study on medical accident compensation institution. Taiwan is also drafting its Medical disputes resolution and Compensation Act and Medical Harm Resolution Law, in the lights of taking spirits, I try to suggest to the legislatures of Macao that it is important to relate the judicial background and social reality to the legislating progress, and borrow from the law and rules of Mainland China, to make a new law with Macao characteristics. Meanwhile, because Sanitary Bureau of Macao Special Administrative Region makes the law itself, so it might be better to be named as Medical Accident Treatment Act.Chapter Three is on how to define medical accident. This is the most important part of this article.Because most of the causes to medical accidents are medical malpractice, so the definition to medical accident can be identical to definition to medical malpractice. Because most of medical malpractices are caused by tortuous actions and contract-breaching actions, the legal rule is that the aggrieved party has the option to choose between the two kinds of claims. Because the claim on tort are more advantageous to the aggrieved party, the aggrieved party most likely to use tortuous claim. Therefore we have to make a systematic introduction to the tort liability theory. Because Japanese tort law provides most efficient rules and theories to solve these medical problems, So this article mainly take the theories, laws and stipulations cases law of Japan as directives, in the meantime take the theories, laws , stipulations cases law and materials from China mainland, Taiwan, Hong Kong and Macao as references, to have a further study on the right to know of the patients, the rights to self-determination during the ascertaining of medical-malpractice, the duty of care of the physician, the duty of inform and discretion right; causation of medical practice and standard of medical malpractice. I put forward my opinions and advices on them. I can say it is the most valuable part of this article.We believe in this article that it is important to grasp the timing of informing when we try to understand the duty of inform. The concerning laws and stipulations of Chinese Mainland and Taiwan all stress the positive nature and ex ante nature of the informing duty. But the language used in Macao Law is ambiguous and misleading. So modification is needed.Regarding the disputes concerning the theorem on "the death of the pregnant" and the criticism against the opinion of "the supremacy of life rights " and "the right of consent of the relatives " , we believe that every one has his right to choose his life style, as far as this right does not cause damages to others. The purpose of the relative's right of consent is to protect the patients; it is the derivatives from the patients' right to protect his own personal rights. In the meantime, the "emergency rescue institution" is hardly practical, some kind of improvement is necessary. The ideas of "establishing ethical review system to the right of consent and judicial remedies" and "establishing formal institutions to authorized consent and signature" are acceptable. Macao Medical accident law draft transplant the Article 33.1 of Chinese medical accident law without its Article 33.5, if the tragedy of Xiaozhijun occurs in Macao, who will be liable?In this article I ascertain the function of proximate causation rule, but do not agree with the idea that we should take the No-cause rule in determining damages. How the determine the negligence of the physician? From the point of view of comparative law, I believe that the standard of common people is not enough, a higher level of duty of care is necessary to determine the negligence of the physician.Because omission is the difficult point in defining medical accident and no plausible solution had been given by relating theories and doctrines so we try to find out a preliminary solution by comparing and analyze cases. Because Japan's academics have made good probe on this, I try to introduce Japanese expectancy infringement theory and make comparative study on the definition to medical accidents, medical malpractice caused by omission and the modes to deal with medical accidents.Chapter Three : No-fault medical accident compensation. no-fault medical accident compensation are most perplexing and troublesome issues during the drafting and consultation of Macao Medical Accident Law, whether or not should we put this kind of institution into this new law, the reflections of the society are strong. The legislature has changed its draft for several times, but still can not make it final. But the institution of no fault medical liability represents the worldwide trend of tort law, so this issue cannot be evaded. Because Japanese law and American and European law have had a comparatively complete system on this for us to learn, so this Chapter is mainly on this. This also denotes the value of this article.Chapter Four: On the issues of burden of proof. This part includes: burden of fault-proof, construction of fault, distribution to the burden of proof, comparison between legal theories and legal rules, the phenomenon of expert's "conspiracy silent", determination to the evidences of medical accidents.Chapter Five: On authentication of medical accident. I mainly use case study method to probe how judges to use legal value determination method to give just judgment.Chapter Six: We believe that the person who has the cause of action to non-physical damages is too broad; what is more, there is no limit to the heirs. In order to avoid the abuse of action, we suggest modifying this provision. After my studying I found that Article 71 (the right to wholeness of body and mind )of Macao civil code is very original, it reflects the difference and connections between the right of body and the right of health, and will provide good remedies to the patient's personal rights. So it is worthy of praise.But as to the stipulation of "restitution" in Macao Civil Code, it is not applicable to the patient's spiritual damages, so the remedy condolence is preferable. By way of granting the vegetative patient and insane patient spiritual damages, their non physical damages could be remedied. The remedy of recovery to fame, dispelling bad social influence and apology are all good remedies in medical accident background; especially in some rural areas.Chapter Seven: Damages to medical accident. This is the concluding part of this article, and it can be considered to be another key point in this article. This Chapter focuses on the definition of the scope of the medical accident damages, and on the construction of non-monetary damages theories.On Macao's legal rules on non-monetary damages shows some creativity and should be confirmed. Relating it to medical accident and damages, this article have a study on the scope of embryo's and relative's claims, the definition to the rights of body and mind completeness, the application of remedies of restitution, damages and apology. I analyzed this from multi-perspectives, and hope that it will provide a new perspective for the studying of medical accident compensations.After my comparative study, I believe that as to the non-fault liability to medical damages, the experiences of Sweden and Taiwan is worthy of borrowing. We can begin with borrowing the experience of Taiwan, then accumulating experience of our own, after all the mechanism are ready, we can learn from the Sweden experience.Conclusion: A summary of this article.