Study On Several Issues Of Compensation For The Medical Malpractice

We begin with the meaning of medical damage, discuss nature and responsibility principle of medical damage compensation responsibility, set forth constitute conditions, combining《Medical Accident Conduct Item》. We offer our viewpoints about law application and distribution of proof responsibility at medical damage compensation lawsuit and offer opinions for perfecting medical damage compensation legislation.Four chapters constitute this thesis and the outline is as follows.Chapter I questioned the concept of"medical accident"and offer the concept of"medical damage", introduces the nature of medical damage compensation .For many years, our legislation and judicial practice adopt medical accident. Medical accident belongs to administrative concept. In the civil law field, medical accident should adopt the concept-"Medical Damage", because tort act law does not pay attention to administrative mamagement of action, but demands actor to do their oligation in void of harming to others. Actor must undertake compensation responsibility, if they harm to others with infringing oligattion. Patient owns damage compensation request right for medical damage fact that is caused by medical act, so we adopt"Medical Damage".In the U.S.A, when negligent tort is confirmed by court as an independent tort type, aggrieved party owns two independent lawsuit base including implied contrast responsibility and negligent tort responsibility and may choose any type. In the U.S.A, all medical damage cases are negligent tort and regard negligent tort as lawsuit reason, negligent tort is an important situation in modern medical damage lawsuit of the U.S.A.In the Germany Law and Japan Law, aggrieved party thinks of their practical lawsuit condition and conducts their question according to tort act responsibility when there are damage compensation responsibility question between doctor and patient. Through studying legal items of Common Law and Civil Law, we find that orientation of law nature of modern medical damage compensation question focuses on dispute of civil tort responsibility. We think that orientation of law nature of medical damage compensation question of our country is civil tort responsibility.Chapter II introduces the responsibility principle and the conditions of medical damage compensation.Medical damage compensation responsibility should adopt fault responsibility principle. Medical activities fill with risk, after medical personnel try their best of reliable and attentive oligation, they must undertake responsibility. It is unfair. Non-fault principle does not think of fault of two parties, only demands to undertake responsibility with cause and effect causality. All these make responsibility loses morality blame and wink at damage. Medical damage owns the nature of non-fault principle and fault principle with fault principle and responsibility invertion, it shows morality blame of responsibility, loses responsibility of putting to proof of aggrieved party, protects benefit balance of two parties and shows fair princple of civil law.Medical damage is caused by medical act, but medical act does not belong to tort act. At medical damage responsibility, illegal tort act only belongs to medical negligent act, because negligent act does not reach reasonable effect of common medical act, does not accord with relative medical items and does not own medical active effect. So negligent act violates life and health right of patient and it is illegal. At medical negligent responsibility, negligent condition is relative with illegal condition and they are indivisible. We think that constitute condition of medical damage responsibility should adopt three conditions as follow: medical damage, medical fault and cause and effect relation.ChapterIII introduces the distribution rule of the proof at lawsuit case of medical damage compensation.At lawsuit of medical damage compensation, with strong profession and high technology of medical act, patient does not offer proof to prove negligent act of doctor during the course of protection, doctor masters important medical record on ensuring medical negligent act, patient is difficult to protect evidence aftering accurring damage and doctor has full time to make up favorable proof and destroy unfavorable proof. All these are unfair to patient. So for protecting legal benefit of patient, our law should adopt distribution rule of putting to proof at lawsuit case of medical damage compensation.We think that judge will be obliterated their function at cases if all cases adopt responsibility of putting to proof. On the base of foreign legal practice, we should adopt responsibility of putting to proof and design reasonable and scientific lawsuit rule in order to objectivity and fair of medical damage compensation case.Finnally, because there is contradictory between law, administrative regulation and legal explaination of our country when conducting the case of medical damage compensation, it is difficult how to suit law, administrative regulation and legal explaination at trying case of medical damage compensation. It does not protect legal benefit of two parties and does not solve medical dispute and firm social order. We think that medical damage civil compensation need carry out special legislation. Life and health right is most basic and important right of human being, protection of these right is important task of law. In view of puzzle of medical damage compensation of our judicial practice, we need draft a special medical damage compensation law.