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On Principles Of Assumed Liability For Damage Of Complications

Posted on:2011-03-13Degree:MasterType:Thesis
Country:ChinaCandidate:X XiangFull Text:PDF
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In a considerable amount of medical infringement cases, because of the concept of "complications" is not clearly defined in legal circles, and even the medical profession, the "complications" will always be made the subject of the hospital while the exemption as a defense. In fact, complications is very possible that the results of medical tort damage. That being the case, it should determine the outcome of this damage accountability. The research of infringement caused by the complications should determine how it applies the principle of imputation first. From the tort liability principles start, analysis of issues surrounding this, this paper want to have a clear understanding to involving medical complications attributable to the principles of tort cases, thus to provide certain reference. This article discusses the following four parts.The first part is the definition of complications. The author analyzes a variety of different of definition, and believe that complications is a new damage that develops in the course of a primary disease or condition and arises either as a result of it or from independent causes. Meanwhile, based on more complex cases of complications, there are several classification methods, under the scope of this article, the author divided complications into three categories: that complications caused by medical malpractice exists, complications resulting from the duty of disclosure deficiencies and complications resulting from product defects.The second part is the principles of tort liability system, explained from the definition of the principles of responsibility and system theory. Responsibility principle is to determine violations bear tort liability of general guidelines. Cited scholars in the principles of the imputation system of "unified responsibility principle" "the principle of the dual imputation," and "three of responsibility principles" and other major viewpoints, I believe that the principle of liability in the complications system should be formed the responsibility of the fault principle, presumed-default liability and the principle of no-fault liability.The third part is the principle of liability of complications doctrine and law. There is less research on the complications of what the liability principles should be applied, and more for the medical tort liability should study how to apply the principle of attribution. The author describes the controversial that "what imputation principles should be applied in medical tort liability", combines "Tort Liability Act" to analysis the current medical liability laws and regulations, and lists the liabilities on the medical provisions of tort. in other countries and regions. I analysis that the cause of complications and the complexity of the performance decided that is inappropriate to adopt the responsibility principles alone. It must combine the principle of fault liability, presumed-default liability and no-fault liability to solve the complex legal problems caused by complications.The fourth part focuses on how to apply complications attributable to the principle of liability. The author deemed that different types of complications should apply the principle of the different, analyzed the reasons and for each should pay attention to the problem. Medical complications caused by the existence of medical negligence should apply the principle of fault liability. Determine fault and the burden of proof is to focus attention. Complications resulting from the duty of disclosure deficiencies disease should apply presumed-default liability. The doctors shall bear the proof of "tell". The scope and extent of inform should be as a standard to measure whether to fulfill this obligation. Complications liability caused by faulty medical products should refer to product liability, and apply no-fault liability. The key issue should be solved is how to define the "defects" of medical products, the burden of proof and the causation.The doctrine of liability fixation of complications frequently appears in judicial practice but much less attention. I tried to stand in a new perspective to analyze this issue and put forward my views.
Keywords/Search Tags:Complication, the doctrine of liability fixation, fault liability, presumed-default liability, no-fault liability
PDF Full Text Request
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