Insufficiency And Perfection Of The System Of Mental Damage Compensation For Medical Malpractice In Our Country

As we all know, the development of medical health is not only an important aspect of social development, but also an important indicator of the progress of human civilization. However, medical malpractice repeatedly occurs because of the objective existence of medical risks and the irresponsibility of medical staffs in the work, with the growing of people's legal consciousness, compensation cases for mental damage occupies a growing proportion of compensation cases from medical malpractice, and the area has become a hot issue. Compensation for mental damage refers to the civil subject whose personal right has been violated so that his personal benefit and status benefit suffers seeks redress through such methods as property compensation for the relief and protection of the civil legal system. At present, this system is not perfect enough, exposing some shortcomings in the judicial practice, so we should revise and improve it as soon as possible..The full text is divided into three chapters:Chapter 1: The theoretical basis and its functions is established for the system of mental damage compensation for medical malpractice .The system of compensation for mental damage which comes from the confirmation of the French Civil Code in 1804 and judicial precedents has been in several decades of controversy and legal practice. Basically, all the nations in the world have got into agreement that it is an independent system of tort law and human rights law in the important position. However, in theory, the experts can not propose a clear conclusion on the rationality and scientific nature of compensation for mental damages. In this paper, after we have inspected scholars all over the world on the basis of the research results, we focus on elaborating the theoretical basis supporting the mental damage compensation for medical malpractice from the philosophy of spiritual values, moral values, value judgment and the balance of interests, and analyze the system which fills the function of harm, comforts and penalty of mental damage compensation for medical malpractice.Chapter2: Analysis on the present situation of the system of mental damage compensation for medical malpractice in our country along with insufficiency analysis. This chapter carries out a detailed analysis on the present situation and existing problems of mental damage compensation for medical malpractice in our country. Through the data in the form, we can see that patients request mental damage compensation in all medical malpractice accounts for a large proportion of cases in recent years; it is mainly because, along with economic and cultural development, the patients gradually increase their self-protection awareness. In addition, there are big differences between different areas in medical malpractice lawsuits.Next, we discuss the problems of mental damage compensation for medical malpractice system in our country in the five aspects. Firstly, the definition of civil subject of the request right is not clear enough. The voluntary main body of mental damage compensation for medical malpractice is the medical establishment, but the subject of object can have the certain difference under different situations, not only the patient himself can be allowed to request mental damage compensation, more over the patient's close relatives can also request mental damage compensation. But the prerequisite of close relative requirements for mental damage compensation is that medical malpractice has caused death or serious harm to patients. However, relevant regulations for the protection of the fetus have not been in the law, and this is the shortcomings of our law. For complete mental patients vegetable, although they lost the capacity for pain perception, this negative mental damage should also be given more proection. Secondly, the scope of mental damage compensation for medical malpractice is too narrow. According to the "Regulations" in China, only extremely serious incident of malpractice which has caused death, disability can obtain mental damage compensation. The author believes that, such compensation scope is excessively narrow, when patients were in hospital, his spiritual benefit should receive a more complete protection, excessively narrow compensation scope is not enough to protect the patient's legitimate rights and interests. Thirdly, the standard of the "Regulations" on the amount of mental damage compensation is low. China's "Regulations" regulates that"the amount of mental damage compensation is calculated according to average resident living fee .This leads to many incidental malpractices taking place. The cause of death: compensation for the longest period is not more than six years; patients with disabilities caused by the compensation does not exceed the maximum term of three years. "In my view, China's "regulations" to the amount of mental damage compensation is extremely low, it violates the purpose of metal damage compensation systerm. Not only can not soothe the pain of the victims and their relatives, even the victim's medical expenses and litigation costs are offset, which means indulgence the one who leads to the incident. In addition, after the mental damage occurred, the degree of fault treatment of the hospital, the patients suffer, not the same as their income. According to the amount of mental damage compensation confirmed by the article 50th of the "Regulations", it goes against the principle of fairness. Fourthly, the law of mental damage compensation for medical malpractice is not suitable enough. The "Regulations" of the State Council belongs to administrative regulations, focusing on the administration and management functions, the relationship with the general rules of civil law is not special law and common law, but the relationship between the upper and the lower, and it can not correctly guide the trial court's specific practice. Fifthly, the payment of mental damage compensation for medical malpractice is not reasonable. Payment of mental damage compensation for medical malpractice in accordance with the "Regulations" in the exercise is a one-time settlements, the author discussed the deficiencies of the payment on the above.Chapter 3: Thoughts on perfecting the system of mental damage compensation for medical malpractice in our country. In this chapter, the author proposes the suggestion to improving the system of mental damage compensation for medical malpractice. Because the relevant laws and regulations is not perfect, there are two problems to be solved as soon as possible. when the court handles of mental damage compensation of medical disputes: First, the amount of compensation varies greatly in different court; Second, different standards is judged by different district court. So to perfect relevant laws and regulations is particularly urgent. It is not suitable that "Regulations" which are pure administrative rules and regulations regulate a pure medical and legal relation in civil damage compensation. The General Principles of Civil Law provisions are too general and lack of maneuverability, therefore there is need of special legislation for medicine and patient disputes. Therefore, the author proposes that legislation enacted in the "Malpractice Act" and dedicates a specific chapter of mental damage compensation, its contents should include: clear definition on the civil subject of mental damage compensation for medical malpractice, expanding the scope of mental damage compensation for medical malpractice, enhancing the standards of mental damage compensation for medical malpractice, improving payment of mental damage compensation for medical malpractice.