Discussion On Compensation For Damage Of Medical Accident

In recent years, the number of case of civil compensation for medical accidents, which is accepted by people's court, has been increasing quickly, and the republication of some influential cases of compensation for medical accident has echoed throughout the society. Different law-engaged people, both in academic and practical field, have different opinions about how to deal with the medical accident. In our country, the laws and regulations on medical accidents have also been adjusted according to the specific situation. For example, rules like provisions on civil procedural evidence given by the supreme people's court and regulations on dealing with the medical accident are being enacted and implemented, and the way of dealing with and the compensation of the medical accident are legalized.By the academic comparison between domestic and foreign medical accidents, the comparison between Methods and Regulations, the discussion on the case that promote greatly the way of dealing with medical accidents and the clarification of the subject and scope of medical accidents, the author of this dissertation intends to make clear the long-term vague understanding of the medical accidents from the viewpoint of re-cognizing the definition of medical accident given by regulations on dealing with the medical accident: the medical accident refers to the accident of patients' recognitory damage, caused by medical organs' and medical staffs' violation to the law of medical management, administrative rules, department regulations and normsof treatment during the process of treatment. The cognizance of the character of medical legal relation on private law mainly involves contractual relation, tortious relation, the relation of spontaneous agency, etc, i.e. relation on rights of creditor. Through the analyzation of the medical contractual relation and the relation of spontaneous agency and the illustration of three relative cases, the author here puts forward the problem about joinder of burden of breaching contracts and burden of tort, and she then points out that, in order to protect the patient's droit, the right of claim about the burden of tort should be chosen in practice. From the viewpoint of tort, the author expatiates on her opinion: the imputation principle that should be applied in civil burden of medical is principle of fault presumption, not equitable liability principle. In this dissertation, the author also expounds the legal constitution of medical accident, i.e. the theory of four requirements: the unlawfulness of tort, the fact of damage, the causality between lawless act and the fact of damage and the fault of the subject. She then discusses the proof burden of medical tort and some other problems that should be paid attention to according to the provisions on civil procedural evidence given by the supreme people's court and regulations prescribed on the general principles of the civil code. The compensation for damage is the reparation of the cognizance of medical accidents. In this dissertation, the author also discuss some specific problems of compensation for medical damage from the viewpoint of the basic principle, character and subject of compensation of medical damage and the compensation for spiritual damage, and she then further puts forward some operational opinions.