Research On Cause And Fault In Medical Tort Liability

Medical care plays an important role in everyone's health and life. In recent years, however, the doctor-patient relationship is getting tenser and tenser. Conflicts, even violence incidents between doctors and patients happen frequently. Besides setting up a perfect social medical system, it's critical to perfect medical legal system in solving this problem. We can resolve medical disputes according to law based on the equity to both doctors and patients and decrease effectively the conflicts and malignant events. Thus, perfect medical tort legal system is significant to harmonious society.Medical tort is a special act of tort. Its highly professional operation and technology, as well as the feature of medical ethics bring about the specialty in the causes and proof in medical tort cases. Tort Liability Law of the People's Republic of China defines both damage liability in medical malpractice and other damage liability as damage liability in medical tort and stipulates the constitutive elements in medical tort. However, there are still some oversights and imperfection. This article provides theoretical discussion and practical analysis on the most two controversial issues– causal relationship and faults in medical tort liability.Since medical tort liability is a practical issue, this article combines theoretical analysis and case studies together, discusses the rationality and applications of different theories from practical view, evaluates the success and failures in related laws in China, explains legal terms and provides suggestions to future laws.First of all, this article explains the four basic constitutive elements in medial tort liability by summarizing the constitutive elements, and points out the difficulties in the identification of causal relationship and faults in legal practice by case study. The main body of this article consists two parts. The first part discusses identification of causal relationship in medical tort. The second part discusses identification of faults in medical tort.The first part of this article discusses causal relationship in medical tort. First, it explains two different legal logics in identification of causal relationship by analyzing and comparing the related theories in continental legal system and Anglo-American law system. It also analyses the applications in legal system by case study. The differences between two legal logics–"necessary– sufficiency- evaluation"in continental legal system while"actual causal relationship– legal causal relationship"in Anglo-American law system, provides examples to identification of causal relationship in China as well as clues to solve problems in identification of causal relationship in legal practices. Second, this part analyses and evaluates the typical perspectives of identification of causal relationship in medical tort in academic circle of civil law. Third, this part analyses legislation disputes and choices of causal relationship in medical tort and legal terms in current law of identification of causal relationship in medical tort. At last, this part provides suggestions on future legislation of causal relationship in medical tort.The second part discusses the faults in medical tort. First, it clarifies the definition of faults in law of tort, laying a foundation for the standards and identification of faults in act of medical tort. Second, it comments on the controversial types of faults in medical tort, supports simultaneous existence of intentional and negligent act and refutes different views with arguments. Third, it explains the causes of faults in acts of medical tort– predictability objectively and metal status subjectively. Forth, it analysis the justification standards of faults in medical tort acts, distinguishes concrete and abstract standards, analyses different standards, explains the application of"The Reasonable Doctor"and"The Hand Formula"under abstract standards and provides legal explanation and deep analyses by case study to abstract standards legislation in China. At last, it discusses legal explanation and proofs of liability allocation in proof in medical tort acts in China, differentiates the faults of treatment technology and non-treatment technology. In the cases of treatment technology faults, clients take more responsibility in proof. But in special cases, the responsibility could be shifted to doctor side. In the cases of non-treatment technology faults, presumption of fault is adopted. Since it is difficult for patients to proof, the doctor side should take the responsibility. The article also analyses these topics by case study.