Study On Tort Liability For Medical Malpractice

Nowadays, the relationship between doctors and patients is going through a poor condition. The phenomenon of defensive medical act and medical trouble makers can be seen all the time because the system of resolving the medical disputes still has a long way to complete. This dissertation is devoting to providing a possible solution to resolve the systematic issue, and to set significant regulations, in this way it is hopeful that the bad relationship problem between doctors and patients can be solved.First, under the principle of traditional fault liability, the tort liability of medical malpractice suffers amount of questions as a result of its fuzziness, which caused a serial problems such as difficult to implement, too vague to guide the specific case, too weak to act the role of damage compensation. Hence, there is a voice that liability without fault or the presumptive liability of fault should be applied to this area. However, which principle weighs heaviest to be applied is rather haze to decide. To admit that, traditional fault liability principle is known for some shortcomings, yet fault liability principle’s understructure is impartial principle, it thus plays a positive role in many aspects, especially it can fit the modern tort cases, avoid unfairness. In another words, the tort liability of medical malpractice in nowadays, still lies on the base of fault liability principle, it should re-interpret the conception of fault, adapt in the considerations from the angle combined both procedure law and substantive law, furthermore, all these efforts are for the purpose of settling down the issue between doctors and patients, protecting the rights of patients.Secondly, the core of tort liability of medical malpractice is medical malpractice, the establishment of core is the presumption of tort liability of medical malpractice system. That’s why this dissertation makes an explicit survey on international systems of medical malpractice system all over the world, in order to make a comparison between them and our country’s medical malpractice system. The medical convention principle is being abandoned world widely, instead of which, flexible principle and system are taking the domain. The reasons can be concluded as follows:the backgrounds and contexts of medical malpractice vary from a uniformed soil, so there cannot be an extreme same standard, and to be sure, each hospital has its own conditions of medical and other circumstances, which can cause uncertainty. Tort Law has clearly put forward the standards of medication, and Japan’s medical level standard has become an inspiration for the author, which seems an idoneity for current China.Next part is the burden of proof for the tort liability of medical malpractice. In China, the burden of proof for the tort liability of medical malpractice has now gone to the patients, rather than to the Tort Law, according to which a system of administrative procedure and some special civil lawsuits wherein the defendant bears the responsibility of providing evidence. Compared with the Tort Laws in other countries, the Tort Law in China lacks in moderate and adaptive rules and regulations, which make both parties unsatisfied. In such sense, the medical malpractice system in China has to establish a judgmental system on medical standard basis in substantive law level, for its flexibility, moreover, the according system of burden of proof should also be modified into a moderate and adaptive ways.Last but not least, one should bear the legal liability when it happens. Through detailed comparison and discussion, and based on the condition that in current China, in the medical malpractice tort liability of damage compensation system, the patient still appears in a vulnerable situation, however, Chinese patients do not often sue the hospital for huge compensation, the author draw a conclusion that the principle of limited compensation is not suitable for China. Anyhow, the mortgage system of US to pay for the compensation can be a positive example for China. Although both one-time payment and mortgage payment have their own merits and shortcomings, they can be a brace for each other. To combine the two systems together, to use their merits for specific case, is demanding for judges, yet it is practical and useful in the tort liability cases in medical malpractice.In China, the future special medical laws are hopefully set up. It should be on the basis of clarifying the articles of patients’ right, and make detailed regulations and rules of doctors’ conduct in every step of medical courses. Only in these ways, the aim of medical law’s legislation can be truly implemented, the judiciary and practical level of medical tort liability can be used as a guide.