Law & Contemporary Problems

With the development of the society, advance of medical technology and people's awareness of human rights, the medical disputes have increasingly become one of the hot topics. However, there are a lot of defects in our medical damage and compensation regulations. These defects hinder the medical disputes from being settled fairly. It seems obvious that some articles in our laws are not compatible with the modern trend of protecting the weak. They have become obstacles to the establishment of healthy relationship between doctors and patients.This article discusses the characteristics of the relationship between doctors and patients. It defines the relationship as a contract one, the nature of which is similar to that of entrustment contract.Author tries to analyze the substantial forming elements of the medical damage, the allocation of proof duty and the extent of compensation. Main points of the article are as follows:i) Negligence, in other words, the doctors' breach of the care duty, is the basic element to constitute medical damage compensation. This care duty is very comprehensive. The article illustrates the duties of instruction and transfer of hospital in case of incompetence. It also discusses the criteria about the judgment of the breach of care duty. Writer suggests the medical technology situation should be a basic consideration, while medical properties, location, emergency and other details should all be taken into account.ii) The causality between the medical service and the damage is another substantial element. In medical area, the causality has its own characteristics.Patients' special physique and medical service properties are important in deciding if there exists causality.iii) Allocation of the burden of proof is very essential to the settlement of medical damage complaints. There is a relatively strict rule by the Supreme Court of China, which requires the medical service suppliers to take the duty of proof in medical disputes settlement. Sometimes, this rule is misunderstood and incorrectly applied. In some circumstances, the patients shall be asked to take part of the proof duty.iv) Damage claims arising from unskillful and fealty medical treatment shall be settled according to The Regulation on Malpractice, other complaints arising from medical neglect, which are not so severe to form the malpractice in The Regulation on Malpractice, shall be settled according to General Principles of Civil Law.Finally, the author presents proposals on the amendment of the existing legal system about medical damage. Although the regulations have contributed a lot to the settlement of medical disputes, it pays too much attention to the public welfare property of hospital; consequently it does not afford sufficient protection for the patients. Some articles are even in conflict with general principles of modern laws. So, it is feasible to enact a new special medical law or a uniform medical law. New law will take the responsibility of establishing new system. It should adopt the sophistic practices of China and abroad. New law is expected to meet with the need of society development, and to protect human rights in a more effective way.