The Economic Analysis Of Medical Tort

As an important legal study theory, legal economics functions as a method to discuss many concert legal regulations. The dissertation intents to analyze, expound and forecast whether the systems concerning medical tort are scientific and effective from the perspective of efficiency and stimulus. Meanwhile, it puts forwards some suggestions about the construction of medical tort of china.The body of the dissertation may be divided into six chapters.The introduction is the brief review of the current study, basic hypothesis and theoretical basis on the economic analysis of the medical tort. This chapter reflects on the study on tort legislation of China and points out that the economic analysis of medical tort is helpful to bridge the gulf between law science community and medical community. Considering that the economic analysis of tort is in the primary stage, it is essential for us to make a comprehensive study. Therefore, the dissertation expounds the basic hypothesis and theoretical basis of legal economics concerning the tort. On the basis of such basic hypothesis as scarcity and information cost, the dissertation intends to demonstrate the theory by adopting Ke Si theorem, Han De formula and so on.The liability criterion of medical tort is the main subject of chapter one. The main aim of legal economics is to stimulate the accident prevention of parties to reach the most perfect level of society. By the legal mean, the distribution of prevention duty can lessen the accident. The most perfect accident prevention of parties of medical tort embodies in the liability criterion. By the chess analysis, the relief system of medical establishment turns out to be ineffective. In the conventional practice, the liability without fault of medical institution may stimulate the hospital to take effective measures to prevent the medical malpractice form being happened. However, due to some uncontrollable factors, it may increase the social total cost and the patient coat. On the contrary, the comparative liability can encourage the parties to increase the investment in medical malpractice and prompt the development of medical science. In a word, the comparative liability between the medical establishment and patient is more beneficial to social welfare.Chapter two focus on the fault judgment standard. Han De formula is universally acknowledged to be the effective standard of fault judgment. By adopting Han De formula to make an analysis on the standard of the duty of care, the chapter concludes that according to the liability criterion, the medical establishment assumes the duty of care within a certain range. The duty of care is provided by medical management procedures, so the medical establishment does not necessarily undertake the prevention beyond the minimum of social total cost. This chapter points out that the tort law abolished the inversion of burden of proof. Although this method improved to a certain degree defensive medicine adopted by doctors for self-protection, it is unfair for patient to assume the burden of poof caused by doctors’mistake. By the comparative analysis on the medical proof methods among several nations, this chapter demonstrates that we should take different methods:the first, in addition to liability without negligence assumed by producers in medical products infringement, the accuser assumed the burden of proof for the defendant’s mistake. If the accuser can illustrate how the defendant to avoid damage, that is to say to provide proofs to illustrate that the medical establishment failed to take the protective methods demanded by Han De formula. The second, if the victim fails to provide sufficient proofs to prove the fault of medical establishment, easing the burden should be adopted, that is to say to adopt surface proven rules. The third, we may take the increasing statutory presumption fault into consideration, that is to say defendant may be admitted to prove his innocence.The chapter three is about the patient right and the duty of medical establishment. The patient right is premise of medical infringement and we should give priority to informed consent right of patient. In the view of information economics, patients and medical establishment formed the principal—agent relationship. Therefore, if medical establishment takes advantage of information asymmetry to violate the patients’ benefit, it is necessary to protect the patients’right. Considering that the informed consent right of patient depends on medical establishment, this chapter analyzes the duty to inform of medical establishment. By the analysis on the consumption utility and consumption preference, it is fair to take specific patient standard as a standard to judge whether medical establishment fulfill the duty to inform, though the standard is strict. The facts influencing the duty to inform include urgency of medical treatment, the public interest and so on. Another important right of patient is privacy right. Unavoidably, the privacies of patient may be exposed. The definition of law for patient privacy may be taken as redistribution of resources and its effect can be verified by Kaldor-Hicks Efficiency Criterion. According to the standard, the privacy rights of celebrity patients include: benefits acquired form disclosing the medical information of celebrity patients are less than that gotten by keeping secret. As for the ordinary social members, their privacy right should be given priority to protect.Chapter four focus on the compensation for medical infringement. Nowadays, considering that there are some shortcomings in the tort law of china, this chapter includes many contents. The first, the definition of positive law about the subject of legal responsibility of defective goods is inaccurate, so producers, medical establishment and sellers jointly undertake the compensation responsibility and put forward some suggestions to revise. The second, the theory of share of the market is an effective way to solve the compensation for victims without knowing who is the suspected. The theory is persuasive to compensation for patient damaged by taking some medicines. The third, the patient died of medical infringement, but the dependents fail to ask for mental compensation according to positive law. That is to say, there are some limitations in tort law concerning death compensation. In addition to, the difference of the compensation between city and countryside reflects the existence of binary system between city and countryside. Considering the fact, the tort law made the tentative breakthrough. The fourth, the punitive compensation for defective medicine, medical equipment and sanction against the illegal actions of enterprise may form a stimulus to encourage victims to institute legal proceedings and prevent damage. As for the punitive compensation, the key question is to decide the sum of compensation. This chapter illustrates that the sum of compensation should be proportional. If the sum of compensation is too low, it fails to stimulate producers to lessen defective goods. On the contrary, if the sum of compensation is too high, it may hider the development of product and commerce. What’s more, the enterprise may transfer the cost to victims.Chapter five analyses the dispersal mechanism of medical infringement. It is insufficient to adopt the tort law to solve the compensation, because the victims should take the risk that can not disperse. The most perfect risk distribution is to match different risks according to different risk attitudes. In addition to, some regulations should be formulated to transfer risk. Therefore, the other dispersal mechanisms are necessary complements to tort law. By the analysis on the three kinds of dispersal mechanisms, we may thus have the view that the medical liability insurance, the first part insurance and social insurance may have the effect of distributing damages. While affirming the effect of other dispersal mechanisms, I take the positive attitude to the future of tort law, because the insurance can not replace liability for tort. Although insurance may lower the risk, it lacks of the most perfect prevention and information stimulus.From the viewpoint of innovation, the following several aspects will be probably made breakthrough, Firstly, from the selection of subject, compared with the contemporary published papers on economic analysis of medical malpractice claims, this paper comprehensively and systematically investigates medical malpractice claims based on law-economics theories. Furthermore, it discusses the main issues related to this scope. Secondly, from the content of this paper, it reflects on the current situations of law of torts and medical malpractice claims, and points out both the current research techniques and content need further improvement. Moreover, qualitative analysis and legal interpretation should be emphasized. Meanwhile, quantitative analysis also needs to be intensified, and social reality should be reflected especially the current rural needs. Lastly, this paper proposes the current institution of medical malpractice claims be improved. These suggestions include:the boundary of the right of informed consent of patients and doctor’s duty to inform, the identification of medical institution negligence, the allocation of onus of proof, and the improvement of current institution of medical malpractice and compensation, ect.The inadequacies of this paper mainly reveal in two aspects:firstly, this paper is analyzed with economic method unskillfully. Medical malpractice involves law and medical science, so the command of medical science affects the quality of this paper. Thus, the communication with medical community and the depth of this paper should be enhanced. Secondly, limited by the content of this paper, partial contents of medical malpractice such as causal relation lack comprehensive analysis and need further research.