Criteria Of Judging The Medical Malpractice ——Theory Of Medical Standard

"Tort Liability Act" has been promulgated, and will soon be in effective. In article 57 of the act, the diagnosing and treatment level of the medical staff were defined, namely, the medical staff should act equal or above the level of "at the time medical level". How to correctly evaluate "at the time medical level" is vital to judge whether one of the medical staff has committed medical malpractice. As medical problems are extremely professional and opacity( in the medical profession that the pathogenesis of many diseases has not yet clarified ), and the special nature of the medical act itself ( empirical, developmental , individual differences ) and other reasons that it seems not so easy to judge whether the medical staff have made any medical malpractice in a medical litigation. Over years, the criteria of judging the medical malpractice has been debated among lots of scholars of civil law in different countries, resulting in a variety of theories, where the theory of "medical standard" was favored by most of the scholars. Some of them even believe that the development of the theory of medical standard is a revolution in the history of medical malpractice theoretical development. It truly shapes its own theory for the first time in regard of the issue of medical malpractice. At the dawn when "Tort Liability Act" is about to put into practice, the author hope to share his personal perspective on the theory of"medical standard", and hope to attract more of the relevant experts on strengthening the research in this field in order to build a more harmonious society by enhancing the level of the judicial practice of medical litigation, and through the impartial administration of justice and fair judgment to ease the conflicts between patient and medical institutions.This article divides into four parts, the first part mainly discusses similarities and differences on judging medical malpractice between our country and other countries over the world.The second part focuses on the occurrence, development and evolution of the theory of Japanese medical standards, and the change course of medical tort case on judging medical malpractice.In view of the particularity of medical behavior,the third part elaborates specific judging principals when using medical standard to judge medical malpractice,and fully considerate other factors that effect judging medical malpractice,in order to judge medical malpractice with an integrated way under specific circumstances.In combination with present medical judicial practice,the fourth part of this article mainly discusses shortcomings and deficiencies of the theory of medical standard,and points out what in urgent need to be improved about the theory.