A Study On Medical Malpractice

Damage indemnification of medical is a kind of civil responsibility, different opinions about the important item to this responsibility are in our national civil law theories, particularly about medical fault. The provision is not perfect, the judicatory practice and operation have too much confusion, and so on. The clear and definite premise to indemnity is that it is a medical trouble, according to the Regulation about Handling Medical Trouble .It is not only disadvantageous to protect the legal rights of the sufferer, but also results in more confusion in law operation. On the foundation of related article in large quantity and judicatory practices, this paper suggests to perfect the legislation of medical Malpractice.This text is divided into five parts totally. The first part is about the law meaning of medical treatments fault definition. Most researches Commence from the concept, but the concept of the medical malpractice is not unified both in theoretical fields and in practice. So firstly, this text gives the definition of the medical malpractice. According to the analysis of three concepts about the fault and malpractice, medical fault and medical malpractice and medical trouble and medical amiss, this text puts forward that the medical fault is the premise to undertake the civil responsibility in medical damage. The medical malpractice is the most important medical fault. The medical malpractice includes more than medical trouble in the current Regulation .On this foundation this papers discuss that the fault has very important meaning in responsibility affirmation. That is to say, it has the theoretical and the realistic meaning.The second part discusses medical treatments fault predication and setting down the proof inference responsibility. Medical damage is very special, so from the fair and even view to protect legal rights of the sufferer, medical damage should execute fault prediction and setting down the proof inference responsibility. By the third part, the medical trouble affirmation has some disadvantage in the current practice. So puts forward to introduce the expert's witness in medical malpractice affirmation. Then the concrete procedure and system is designed on.The affirmation of medical malpractice is a textual core to the four-part. It is dividedinto three cents: First, the certain standard to affirm medical malpractice should be designed on: General standard and concrete standard. General standard is medical level, firstly gets the confirmation in Japan, namely that when the doctor proceeds the medical behavior, its scholarship, notice degree, technique and attitude should match the doctor who have the general medical profession level. If the doctor's behavior doesn't match this standard, the malpractice is affirmed. The concrete standard has some concrete and objective factor. Medical malpractice still be judged by the local, urgent and special factor. Then, by nine cases it analyzes the concrete performances. Finally, generalizes four wrong performances in the medical malpractice affirmation .It provides some objective completely basis in the medical malpractice affirmation.The fifth part is most necessary. Theoretically it has been a hot point that the medical damage responsibility is the infringement responsibility or the breaking contract responsibility. To this, the writer thinks this argument has not real righteousness in practice. Firstly, unifying breaking contract responsibility and the infringement responsibility matches the same cognition theoretically: choose by oneself. In practice it has some different methods and standards to affirm this two duties, but as far as the medical damage, anything is changed. For even from the infringement view to affirm the medical malpractice, we will come to the end of breaking contract. Different roads lead to the same goal. Therefore, no matter the basis of breaking contract responsibility or infringement responsibility, for the purpose of affirming the civil responsibility of medical damage, the medical malpractice affirmation has the most important and realistic meaning.