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The Historical Evolvement And Perfection Of System Of Principle Of Imputation In Medical Damage Liability

Posted on:2011-11-01Degree:MasterType:Thesis
Country:ChinaCandidate:Y H HuangFull Text:PDF
GTID:2166330332973373Subject:Law
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Before the implementation of Tort Liability Law, there was no unified opinion on the doctrine of liability fixation applicable to liability for damages caused by medical treatment in the law, administrative regulations or judicial practice; and there are different points of view among the judicial theorists. The doctrine of liability fixation of liability for damages caused by medical treatment applied in the Tort Liability Law is a comprehensive doctrine which consists of tort liability doctrine as main part and presumptive tort doctrine as subsidiary. However, the said comprehensive doctrine does not take into account the legal knowlege and relief ability of the patients, which fails to provide a better protection to the right and interesst of the patient and could not really balance the doctor-patient interests and build a harmonious doctor-patient relations in reality. Based on the writer's personal working experience, this article sorts out the 30 years'historical development of doctrine of liability fixation on damage by medical treatment, as well as the four major theories in the field. By identifying the present inadequacy and combining the status and characteristics of doctor-patien relationship, the article analyzes the factors considerable in the establishment of doctrine of liability fixation, and further provides an advice on perfecting the system of doctrine of liability fixation for damage caused by medical treatment.This article is divided into four parts besides the introduction and conclusion:The first part is the historical development of doctrine of liability fixation for damage caused by medical treatment. Our country's doctrine of liability fixation for medical damage has evolved in three stages, from the doctrine of tort liability to the doctrine of presumptive tort to the comprehensive doctrine with tort liability doctrine mainly and presumptive tort doctrine subsidiary. During the stage of doctrine of tort liability, the regulations between General Provision of the Civil Law and the Measures for Handling Medical Accidents are not consistent, but basically doctrine of tort liability was dominant and was also applied by judicial departments. During the stage of, doctrine of liability fixation for medical damage stipulated in administrative law and regulations was not consistent with the one in judicial practice, but mostly doctrine of presumptive tort was applied. Nowadays the doctrine of liability fixation applied by Tort Liability Law is the comprehensive doctrine with tort liability doctrine mainly and presumptive tort doctrine subsidiary The second part is the comment and analysis on the four theories of doctrine of liability fixation. The articles puts forward that the theory of doctrine of tort liability may be over emphasized on the right and interests of medical institution and ignore the patient's right and the possibility of its realization, which is unfair to the patients. And on the other hand, doctrine of presumptive tort may focuse too much on the protection of the patient and increase the responsibility of the medical institution, which is unfair to the medical institution. And doctrine of no-fault liability may lead to a situation that more responsibility to medical institution and more protection to patient, hence it's even more unfair to the medical institution and it's incompatible with the health care system in our country. The comprehensive doctrine brought up by Prof. Yang Xin, in the wirter's opinion, is not scientific enough, for it can not change the defect of doctrine of tort liability applied. It has little meaning to apply doctrine of no-fault liability in liability for medical product damage, because liability for medical product essentially belongs to doctrine of liability in product responsibility, and it's unnecessary to discuss liability for medical product damage in the fixation system of liability for medical treatment. The above four theories are unable to balance the interests among patient, medical institution and the public at large and are not conducive to buildling a harmonious relationship between patients and doctors.The third part is the status of doctor-patient relationship and the factors considerable in establishing doctrine of liability fixation for damage caused by medical treatment. The doctor-patient relationship involves many aspects, attracts deep social concern, causes massive social impact and easily triggers mass incident, therefore to make determination on the doctrine of liability fixation for damage caused by medical treatment, we shall fully consider the patient's right of timely rescue, reasonable diagnosis and treatment, fair medical fee, and right to obtain relief, consider the particularity of medicine science, the important influence of existing medical techonolgy on clinical result, the nature of public welfare of medical service, and consider the overall interest of the society, so that we could solve the problems such as"expensive and hard to see a doctor","over treatment","over examination"and"defensive medical treatment", and improve our medical service.The fourth part is some advice on Improving doctrine of liability fixation for damage caused by medical treatment. The article suggests that by adopting the method whether the patient has the ability of indentification during the medical treatment as applicable standard, establish an integrated doctrine of liability fixation combining doctrine of tort liability and the doctrine of presumptive tort, which could balance the interests among medical institution, patient and social public in a better way. It helps to balance the burden of proof between medical institution and patient, ease the contradiction between medical institution and patient, promote the development of medical service, ensure the public nature of medical and health industry, and maintain prolonged social stability, all in all, it fulfills the needs and requirements for the ongoing medical care system reform in China.
Keywords/Search Tags:Medical damage, Principle of imputation, Doctor─patient relationship
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