Tort Liability In Case Of Medical Disputes

"You do solemnly swear, each by whatever he or she holds most sacred that into whatsoever house you shall enter, it shall be for the good of the sick to the utmost of your power, your holding yourselves far aloof from wrong, from corruption, from the tempting of others to vice......"This is the famous Oath of Medicine by Hippocrates in ancient Greece. Doctors and patients should have given to each other mutual trust, mutual respect, mutual understanding and mutual help. But, with the consolidation of Chinese economic strength, research in-depth in medical domain, popularization of medical knowledge and education and the arousing of civil consciousness of protecting their own rights, traditional relationship between doctors and patients encounters serious challenge. Medical disputes happen frequently. There even appeared such profession as"Medical Dispute Maker".As far as the relationship between doctors and patients concerned, liability of medical damage is synthetical one, which includes two kinds civil liabilities: one is breach liability and the other is tort liability. This thesis will discuss the latter in three chapters structurally besides introduction and epilogue.Chapter One is about principle of attribution for tort. Firstly, by stating the definition of attribution, principle of attribution for tort.Secondly, the system of principle of attribution for tort is for discussion. The author hold the opinion that the system of principle of attribution is composed of Principles of Liability with Fault and Liability without Fault. At last, the composing requirements for tort is stated. According to the difference of the two principles of attribution, the composing requirements for tort should be classified into fault-oriented and no-fault-oriented ones, which is composed of positive requirements and negative requirements respectively.Chapter Two is about principle of attribution for tort in medical domain, which is stated by three parts. Part One is about how to choose the principle for compensation of medical damage. The author deems that Liability without Fault should not be adopted in case of medical tort by means of analyzing theoretic basis of the principle of Liability without Fault. The author deems that principle of fault assumption, one of the principles of Liability with Fault should be adopted in case of medical tort in order to better protect the interests of patients. Part Two is about the positive requirements of medical tort. The relating content in Section 3 Chapter One is continued to be stated here, combined with its own characteristic of medical tort, the author deems that medical fault absorbs medical illegality. This thesis holds the point that positive requirements for medical tort includes medical fault, medical damage and causality of them, and therefore, discusses how to identify each of them. Part Three is about the negative requirements for medical tort, that is,"Reasons of Impunity".Chapter Three is about assumption of responsibility, that is, compensation for damage, which is stated by three parts. Part One is about principles of compensation for medical damage. The author deems that compensation for medical damage should comply with the principle of all sideness and quota limitation. Part Two is about legal application of compensation for medical damage. By analyzing the origin of double-track system of legal application of compensation for medical damage and indicating the perniciousness of it, the author deems that legal application of compensation for medical tort should be unanimous. Part Three is about the range and calculating standard of compensation for medical damage. The author deems that medical negligence and non-medical-negligence both belongs to compensation for tort. Since theoretically they are same in nature, there is a theoretical basis for establishing an unanimous standard for compensation. Finally the thesis discusses the category of compensation for damage and on the calculating standard of compensation for damage in combination with Tort Law of the People's Republic of China.