The Research Of Civil Liabilities For Transfusion Infection

Due to the focus of this article is mainly of blood transfusion infection and produce practice more difficult problems, and tries to provide the solution of these problems systematic solution, therefore, this article discusses the problem from practice, layer upon layer, analyzes its legal theory, and combining the method of social policy, economics, medical technology and ethical aspects and so on, in order to establish a relatively complete system of liability for blood transfusion infected with the virus.Following the above ideas, this article first introduces the practice in the introduction of infection due to blood transfusion behavior and produce a variety of difficult to solve the problem, because blood transfusion is the most direct and effective means of treatment for severe disease (especially a lot of blood diseases), blood more and more hospital clinical need. However, blood transfusion has great risk. Behavior itself, therefore, blood transfusion is unable to avoid risk factors, such as the patient to lose blood rejection and complications caused by blood transfusion, etc. In addition, the risk of blood transfusion is a blood transfusion easily cause infected patients with serious diseases. So the key lies in how to prevent, first enter the patient’s blood, must through the blood collected, inspection, separation, processing, packing and so on use before the test, when using should carefully examine and verify. This program all the links in a are not allowed to slip, and restricted by medical standards (e.g., a lot of disease is still in the window cannot be detected medical reagent), might be caused by serious pathogen infected blood, the blood once and immediately enter into the patient’s body will infection is very serious, even can’t be cured. As the breakthrough point, this paper puts forward the paper studies the problem of domestic and foreign research on this problem, present situation and research methods of this article and writing framework. Due to blood transfusion of contagious diseases, such as a, b, hepatitis c, syphilis, AIDS and so on, usually there is a serious threat to the life of the patient’s health and cannot be cured some will also involve the safety of life and the existence of infectious characteristics. In the process of hospital blood transfusion patients, and was to treat their illness, if infected blood transfusion, will cause the victim’s anger and endless responsibility shall be investigated for hospitals and claims disputes. Such disputes will involve the multifaceted issues such as law, medicine,. For the cases of civil disputes, lawsuits, responsibility, imputation criteria, claim amount, etc., the lack of consensus, academic understanding of the laws of the blood (whether as a product) and blood in paid for free also lack basic consistent. The author makes a concrete discussion to it, in case of in the future of blood transfusion infection, the patients can complaint, and the court can judge it.On this basis, this article first USES the method of comparative law in this chapter first analyzes the legal significance of blood and blood products to distinguish, in order to make the due to blood transfusion infected patients can access to treatment and relief as soon as possible, blood stations and medical units can continue to maintain its own daily work order, maintaining the social stability, distribution of blood transfusion infection must be detailed research of the criminal law, justice, fair and open. The legal responsibility assigned premise condition is clear that blood products and the legal definition of blood, blood or blood products and can be as a "product". It involves the choice of applicable law standard. If blood products and blood conforms to the "product" attribute, the blood stations into a "product" of "operator", medical units into a "product" of the "seller", according to the law of our country, can be used "consumer rights and interests protects a law" and "product quality law of the People’s Republic of China" and other relevant regulations of the product liability. If the blood, and blood does not belong to the "products", the definition of patients due to blood transfusion infection disease for violation of the right to life, to the patient health medical units and blood stations must bear the main tort liability. Whether in blood and blood as a "product" before, we need to start with the causal relationship between them is analyzed. First of all should be clear that the blood and the blood are two different concepts. Blood contains immunoglobulin (liquid), blood (visible part) and serum, the article element of middle finger used for clinical blood, whole blood and plasma raw material for production of blood products. Blood products belong to special plasma protein products. Blood and blood in many aspects such as the management to the production and operation have many differences. Then discussed the legal attribute of blood products, from the blood and different point of view to see the blood, is opposite between ideas. The blood products stipulated in the law, as the range of products. Most countries like Germany, Japan, France, in their blood products related laws and regulations agreed to blood products as "products" category, shall apply to the product liability act and the manufacturing material liability act. Blood products attribute is the product, and properties of the blood products, the author think, that is focused on the blood isn’t suitable for products of major constituents, hypothesis is suitable for products of major constituents, blood must belong to the category of product:if you are not suited to the product composition elements, then blood should not belong to the category of products. I think, can you have your product combination of elements due to the following points:one is personal property; Secondly, using the production and processing:there are three for liquidity. Whether by means of profit (for sale), excluded from the cognizance of the product. And after hospitals and blood Banks and processing of blood through the patient’s equivalent exchange into products. Then this paper introduces the present situation of blood transfusion infection civil liability. This is mainly because the research of this problem in some extraterritorial legislation, theory and practice has been more thorough, discusses the status quo, contribute to an understanding of the problem in-depth, also can know blood transfusion infection civil liability mainly exists in three forms:product liability, contractual liability and general tort liability.The third chapter is the blood transfusion infection caused by the nature of civil liability of product liability. Whether follows the train of thought, this paper first analyzes the blood transfusion infection civil liability shall be regarded as a kind of product liability, or only a part of blood transfusion infection civil liability shall be regarded as a kind of product liability, and the cause of that. If it might involve many problems, such as blood products, whether the damage caused by blood transfusion (whether there is defect of blood products), blood transfusion is product liability subject hospital or blood stations, etc., to discuss product liability legal consequences if the act constitutes a blood transfusion, and this is the right legal consequences in practice.In the fourth chapter in this paper then discusses whether the blood transfusion infection civil liability shall be regarded as a kind of general tort liability, or only a part of blood transfusion infection civil liability shall be regarded as a kind of general tort liability, and the cause of that. It also involves a lot of problems, first is the problem of imputation principle, there are a lot of disputes between the academic, fault liability and no-fault liability and fair liability standard. This paper argues that determines the blood stations shall be provided to patients blood infection caused by damages of tort liability, and through the comparison we take a look at what is blood stations responsibility imputation criteria. Blood is the product, is the product liability blood stations, and the product liability of blood stations is product tort liability. In tort liability system, the hospital in the blood transfusion infection of responsibility imputation principles should be in accordance with the no-fault causes blood transfusion infection tort liability imputation. Responsibility and the author suggested that the patient should comply with the fault liability imputation criteria, namely the patient only for their own fault of harmful consequences to bear full responsibility; If the patient does not have the result of the damage fault, don’t need to take responsibility alone.As for the patient’s subjective fault, the author think, should implement standard of onus probandi inversion, the patient is not to prove its subjective fault, by medical treatment units and blood stations to carry on the proof to prove the patient’s fault. If you can’t prove blood stations and medical units blood transfusion infection is caused by the patient’s subjective fault, patients do not need to assume responsibility. Because it is based on the patient to professional medical knowledge and lack of understanding, so when a patient with a rare disease called urgently waiting for the treatment of dangerous situation, the patient is not possible for the whole body before symptoms clear about one by one, there will certainly be omissions. And the physician is can to understand the patient’s clinical symptoms and grasp. The criminal law theory, and whether the suspect does not need to prove the defendant committing crimes; Public prosecution unit and the plaintiff must prove the defendant or a criminal suspect is guilty, if you can’t show the guilty. The court will decide the defendant and the suspect not guilty. Hospital unit, blood stations and patients, as blood products "seller","producer" and "customers". Therefore, in the blood stations and the legal obligations between hospitals and patients is how to distinguish? According to the general principles of the civil law "regulation, on the other party to the other party has fault, the loss that causes must be have the fault of one party to compensate all loss of injured party:loss of both parties at fault, should according to its actual fault size together share the loss. Assuming that the hospital unit, blood stations and patients of the three, one party has negligence to the blood transfusion infection, is borne by the party alone harmful consequences:if our faults, two of the three should be from the both according to the standard of fault, to contribute ratably to the loss in common:if the three parties are at fault, by three parties according to the standard of fault, to contribute ratably to the loss in common; If the three parties have no fault, should be based on fair by the three parties within the scope of responsibility for the part. The author thinks that, although the blood flow, blood infection to the patient responsible for, however, the law should not be included in the investigated range of patients, namely, patients infected by blood transfusion, cannot ask head and blood donors be liable for damages. The reason is:first, the patient not privy to the details of the donor. Selling blood donors in relevant records in blood stations, but for various reasons, these records may be fabricated has been lost, even if blood stations with this information (blood stations shall store this information with10years), patients cannot obtain, more not privy to the details of the donor. In addition, blood donors are usually family circumstances, because of the poor are forced to sell blood. Even if the patient can find blood donors, blood donors also have no economic strength alone bear the liability for compensation for the damage. And, at present a lot of blood donation blood yesterday were first organized led, want to look for blood, is not easy. Even if finally found blood head, because of its often have some underworld property, patients in the vulnerable groups, cannot with the theory. In view of the above has many difficulties, the author suggest remove blood donors, blood head should be outside the scope of legal compensation for damage. If because of blood infection causes. Truly presumption can be blood stations exist faults by blood stations shall undertake liability for the patient. Blood stations in CaiGongXie relations, there is a series of responsibility, such as for the blood donors to provide all the safety, convenience and sanitation facilities:blood stations in pursuance of the mouth must implement physical examination for blood donor in accordance with the health inspection standards, and blood on blood stations shall audit information, are not allowed to accept imposter blood, not allowed to collect too much blood, and frequent blood collected; Finally. Blood stations also collected in dealing with strict blood virus antibody detection, and use of chemical reagents and strict testing instrument of blood through separation, processing and production, storage and packaging. Blood stations if collected unqualified blood wasn’t detected in time, cause patient infection, said blood stations at fault, then you must let blood stations take full damage liability to pay compensation. Head, blood donors do not need to be liable for damages to the patient’s legal responsibility. Blood stations, hospitals and the health administrative departments should improve the supervision mechanism of the blood quality, resolute don’t allow to purchase illegal blood source, increase the blood test standard and strict laws and regulations; Public security units, prosecution should be timely to crack down on illegal blood activities happened:if caused by a blood donor, head of serious blood-borne infections, judicial unit should all the criminal responsibility shall be investigated for the relevant. In addition this paper also discusses whether the blood transfusion infection constitutes damage, whether must take fault liability as the imputation principle, and the cognizance of causality, also need to be examined, the blood transfusion infection responsibility as the pros and cons of general tort liability, and whether it is proper in practice.Similarly, in this paper, in the fifth chapter discusses whether the blood transfusion infection civil liability shall be recognized as a liability for breach of contract, or only a part of blood transfusion infection civil liability shall be recognized as a liability for breach of contract, and the cause of that. In the process of patient visits to medical institutions, the two sides forming doctor-patient contract contract. The contract has some characteristics as follows:first, doctor-patient contract main body of the two sides are on an equal status. In addition, the patient medical units in attendance register actively, produce the offer; Medical units in accordance with the requirements of the patient to the diagnosis and treatment of behavior, amounts to a promise, so the equality of medical service contract relationship between both sides. Secondly, in terms of both sides of the content of the contract, medical units to provide safe and reliable medical services to patients, blood transfusions nature is a part of the activities of the diagnosis and treatment, and others pay the price. In clinic blood transfusion in patients with stage, medical treatment unit for patient input contains bacteria and virus pollution lead to blood transfusion infection, is actually a medical treatment unit not enforce the contract and shall bear the liability for breach of contract. So, blood transfusion infection dispute "contract law" to be able to apply to adjust. The author thinks that, blood transfusion service as a common behavior of medical service, based on the service between doctor and patient can form the medical service contract, there is no opposition, but I don’t agree with the patient’s blood transfusion infection for damages in accordance with the contract filed, and by the law of contract law to adjust the relationship of patients and medical units have negative influence on both sides. Scope of liability for breach of contract damages restricted the patient damage to the exercise of the right of claim. Default compensation standard is limited to property damage compensation, in other words, only those who can reasonably foreseeable damage to property can be carried out by the breaching party compensation. And because of the medical staff caused by the fault of the patients’ blood transfusion infection, and other accidental damage, in the treatment of phase is the key physical and psychological pain, rather than physical abuse, this does not apply to the compensation of default category, therefore, if the default bringing the blood transfusion infection, the liability for compensation is more difficult. Liability for breach of contract as a kind of strict liability, it damages the space is lesser, even if the patient can get part of the compensation, cannot make up for the loss of the patient all, this is very adverse to the patient.Finally, the article discussed in the above chapters, on the basis of comprehensive social policy, economics, medical technology and ethical considerations, for our country legislation to make systematic construction should be the choice of this problem. Current legislation because there was no fault of blood transfusion infection cases, against the patient’s health, and improve the economic pressure of the patient. Due to lack of specific laws and regulations in the case of uniform standard, lead to court rulings across different, thus causing disputes between doctor and patient are getting worse. The current law to solve no-fault blood transfusion infection despite enacted the tort liability act, but the regulation of the legal problems of blood transfusion is not fully, cannot be effectively applied to the medical damage compensation cases judgment standard. Countries need to introduce the corresponding judicial interpretation as soon as possible, for no fault of blood transfusion infection tort damages no-fault liability principle to specific provisions shall be applicable. At the same time, should establish standard of blood transfusion infection of the social security system, perfecting the relevant laws and regulations, make share the risk of blood transfusion in the social scale, to effectively protect the legitimate rights and interests of patients, blood stations and medical units. Social policy Suggestions to set up the medical liability insurance system, strictly implement the system of blood supply of blood comprehensive detection, and safety in blood, to set up the compensation fund government no-fault blood transfusion infection, improve the system of transfusion related to management of medical institutions, and medical technology and ethical considerations, such as technical measures to prevent blood transfusion infection, blood transfusion infection after relief. More important is to should be the choice of legislation in our country, perfect the relevant legislation of blood transfusion infection, blood transfusion and use of blood products infected with HIV and viral hepatitis patients’ legal rights protection "green channel", the epidemiological data as an important evidence to determine the defendant liability, the state aid does not take the place of the infringer liability to pay compensation, medical treatment compensation methods and standards shall be made in the form of legislation regulation, should be infected HIV/AIDS patients should get the disability compensation and compensation for death should make provision. Must build transfusion insurance system.