Study On The Imputation Principal Of Medical Tort

Abstract: Before the tort law enforced, we applied different laws into different issues, according to dividing the medical disputes into medical accident and medical non-accident. The reason is legislators try to regulate the relationship in administrative law rather than civil law. Now this is the first time for us to use medical tort concept in tort law, which obviously makes a progress than before. In terms of the imputation principal of medical tort, tort law establishes the responsibility principal of the fault in article 54,also regulates three occasions in which fault-deduction principal is applied in article 57,and regards the no-fault liability as one principal in article 59.This essay analyzes imputation principal of medical tort in detail, in order to offering correct theory foundation .Herein research route begins with the concept of medical tort, points out why use this concept and discusses the types of medical tort under the concept. Through type method, author divides the medical tort into two types including medical technology damages and non-technology damages under which medical product damages and other situations been divided, different principal are applied into the different situation individually and the reasons are proved. According to different reasons, author believes that principal of fault-deduction should be applied in medical- technology tort generally, no-fault principal should be applied in medical product tort and fault principal should be applied in common cases ,adding principal of fault-deduction applied in other situations. This essay introduces and analyzes foreign relevant legislation and practice of countries and regions handling medical tort from the comparative law angle, point out what china should learn from. I maintain take the advantage of related France law characteristic so that establish the system of principal. At last, I point out the unreasonable regulation in tort law from the type angel. It is unfair for the patient to get compensations from the hospital in article 54 when the doctor obeys the regulations of article 58, but still causing some medical-technology tort. Based on the complex and professional character of medical-technology tort, the author insists on applying the principal of fault-deduction to it generally.