A Study Of The Civil Liability For The Infringement To Others By Medical Negligence

Abstract: In recent years, the disputes between hospitals and patients caused by the medical accidents and medical faults have been increasing in China. It has received more and more attention from both law and medical circles as to what kind of liability should be adopted to mediate the disputes. The judicial practice has proved it difficult to solve this serious social problem through administrative methods. On the contrary, the adoption of civil liability has been proved to be efficient. We have studied the relevant theories and the judicial practices concerning the medical negligence in Japan, Germany, the United States and Taiwan. Based on the careful analysis of the theories and the practices, we propose that the disputes between hospitals and patients can be better resolved through the general tort liability of the civil law.The above- mentioned civil liability caused by the medical accidents and medical faults can also be called civil liability caused by the medical negligence. It is a special manifestation of the tort civil liability, which, in essence, falls into the category of general tort liability. The formation of the liability should accord with the basic conditions of the general tort liability, i.e. negligence, illegality, cause and effect relationship, and infringement. However, the medical action has its own specific characteristics, which distinguishes it from the general tort liability, specifically in terms of negligence in the formation of its liability. The present essay focuses on the analysis of the four basic conditions of the civil liability caused by the medicalnegligence. The negligence of hospitals is determined by the objective standard of doctors' duty of care and the abstract standards used in the practical judgments of the medical negligence. Duty of care is regarded as an important condition of illegality, which excludes the dangerous medical actions with patients' informed consent. Finally, the author analyses the characteristics of the cause and effect relationship as well as the conditions of infringement.