On Compensation Of Medical Damage

Abstract: Anyone who studies compensation of medical damage should not only take legislative frame or related jurisprudential theories into account, but also attach importance to this issue from the trial practice angle and make thorough studies after integrating the medical treatment and judicial practice together. This article is designed to expound the issue from five aspects. 1.Since all kinds of medical damage are caused by medical treatment, this article discusses the definition and characteristics of "medical treatment"at first, and then it puts forward the author's own opinion through analyzing different opinions about the nature and principle of imputation in academic and practical fields. The author reckons that the "negligence liability doctrine"should be adopted concerning the nature of liability, while the "strict liability principle"should be adopted concerning imputation. 2. The "four-constitution doctrine"is usually adopted in judicial practice. This part expounds them one by one: medical damage, illegitimacy of detrimental medical treatment, causation between medical treatment and detrimental consequence. Causation and fault are the key factors to be determined in cases concerning compensation of medical damage. About causation, the author expatiates theoretically the feature and manifestation of causation in medical liability, combining it with judicial practice. As for the standard to judge medical fault, the author deems that both concrete and abstract standard should be considered, and also we should give attention to other factors such as medical condition, difference between areas, technicality and emergency of medical treatment, etc. 3. The realization of substantive rights should recur to just judicial procedure. It is a wise provision made by the Supreme Court to reverse the burden of proof (concerning two key factors: causation and the nonexistence of fault in medical treatment) in medical litigation which balances the proving capability of hospital and patient. The article introduces the doctrine of allocation of the burden of proof, the meaning and jurisprudential foundation of reverse of this burden, and then it mainly expound how the hospital and patient should prove so that each party's legal rights and interests can be protected most. 4. All the cases concerning compensation of medical damage should apply to The General Rules of Civil Law and its relative judicial explanation. Aiming at two different opinions about the application of medical damage cases (whether The General Rules of Civil Law or Ordinance on Medical Accident should be applied), the author explains it in the framework of present law, and reckons that all the cases brought to the courts should apply The General Rules of Civil Law, no matter whether they constitute medical accident or not, in consideration of impartiality and consistency of the application of law. 5. It is important to determine the liability and indemnity reasonably to protect both party's rights and interests. This part concentrates on the following issues: standard of medical detriment, scope and calculating method of indemnity, compensation of mental suffering and limitation of action. The author also gives some advice on the judicial practice in medical indemnity field in the hope that it may of some help for patients to gain remedies.