On The Contract Law Relief Of The Medical Damage

The purpose of the article is to complete the relief system of the medical damage, which should be compensated according to the Contract Law, including the Administration Law and the Tort Law. The range of the study is very wide. This article is just about the Contract Law relief of the medical damage. Above all these questions should be answered: what is the theory precondition of the medical damage? What is the relief ways of the medical damage? If it is necessary for the Contract Law relief of the medical damage to exist, how do the Contract Law relief and the Tort Law relief coordinate?This article is totally divided into for three parts:In the first part, the theory precondition of the Contract Law relief of the medical damage is the medical service contract. The fundamental cause of the Contract Law of the medical damage is the existence of the medical service contract. At first, we should analyze the legal nature of the relationship of hospitals and patients. The opinion of the article is that the relationship of hospitals and patients is a civil relationship between equal parties. In different situations there are different kinds of civil relationship; however, in the ordinary course of event, it should be the medical service contract. Firstly, the relationship of hospitals and patients is a civil relationship between equal parties, because the basic characters of the relationship of hospitals and patients is the ones of a civil relationship between equal parties. These characters are that the parties are equal in the sight of law; the content of the relationship is the person and property, and an equivalent and paid form. Secondly, in general, the relationship of hospitals and patients is the medical service contract. In spite of the relationship of voluntary service and compulsory treatment, they are seldom seen. Mostly the relationship of hospitals and patients is the medical service contract. Moreover what is the character of the medical service contract? On the basic of analyzing kinds of the theories, I think the character of the medical service contract is a synthetical contract, the core of which is a kind of contract of commission similar to that. Thirdly, it is the type of the hospital's non-performance of obligation. The dispute caused from the medical damage is the one caused from the service of diagnosis and treatment. The basis of the dispute is the dispute of whether the hospital's obligation is performed satisfactorily. The key of dealing the disputes caused from the medical damage is how to understand and define the type of the hospital's non-performance of obligation. According to the type of trust, the type of the hospital's non-performance of obligation is the non-performance of the obligation of sufficient care which the hospitals should take and the non-performance of the obligation of loyalty which the hospitals should give to the patients.In the second part, it is discussing about the way of the Contract Law relief of the medical damage. The way of the Contract Law relief in china is mainly obligations of continuous execution, a penalty for a breach of contract, compensation for any losses, cash deposit and termination of a contract. When the hospitals and patients come to a contract, the parties don't generally pay a penalty for a breach of contract or cash deposit, so when the hospital breach the contract and cause the patients'physical damage and mental damage, the compensation for any losses, continuous execution and termination of a contract should be applied. Is it necessary and rational for the regulation about punitive relief of the Law of Consumers'Rights and Interests Protection to settle the medical treatment dispute, which is gradually compensated by the relief system of the Tort Law and the Contract Law? Because the medical service contract is mostly a synthetical contract and the relationship between hospitals and patients is possibly the relationship between operators and consumers, the Law of Consumers'Rights and Interests Protection apply to the relationship between hospitals and patients logically. Moreover it is applied to balance the interests between the strong and the weak, and to avoid that the strong take the advantage to flow over the weak. So the punitive relief is also one of the ways of the Contract Law relief of the medical damage.In the third part, it is about how to coordinate the Contract Law relief and the Tort Law relief. Although the Contract Law relief of the medical damage is important but not enough, the Tort Law relief of the medical damage is necessary. To achieve the goal of coordinating the Contract Law relief and the Tort Law relief, to guide by the rights of patients as a center and keeping one eye on hospitals'interests, and on the premise of the existence of the Contract Law relief and the Tort Law relief, I present three suggestions about how to coordinate the Contract Law relief and the Tort Law relief, according to the present judicial and theory situation. At first, on the conflict of claim, we should attach equal important to the Contract Law relief and the Tort Law relief, shouldn't make distinctions between the types adopted in different periods. And the victims have free choices. Secondly, on liability and the burden of proof, because of the complexity of medical service and the particularity of the medical action, the liability of medical damage should not be the single one. The different kinds of liability should be applied to the different kinds of medical service. The liability of medical damage should mainly be responsibility for presumption of a mistake, supplemented by strict liability. For one thing, which are different between the obligations of wrongdoing against a person or his property and a breach of contract, responsibility for presumption of a mistake should be applied to compensate the medical damage, because of the particularity of medical action. For another, strict liability should be applied to amend the damage caused by the non-medical action, because the goods and services which are offered by the hospitals is the same with the ones offered by operators. At last, on compensation for mental damage, at present for fully protecting the legal rights of patients, my suggestions are as follows: for one thing, it could be compensated for mental damage in contract. On this condition, one party claim to another party for the compensation for mental damage, not according to the law, but to the parties'agreement which is effective because the content of agreement is not against law; for another, If there is not this content of the agreement, one party should bring a tort action against another parties to compensate for mental damage. In the long run, we should lay down the regulations of the compensation for mental damage, which includes mental damage causing by breaching contracts and by any wrongdoings. So we can define the calculation principles, ranges, ways, and so on and so forth.