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Study On Compensation Of Medical Damages

Posted on:2008-03-04Degree:MasterType:Thesis
Country:ChinaCandidate:G X GuanFull Text:PDF
GTID:2166360215457363Subject:Law
Abstract/Summary:PDF Full Text Request
Along with the frequent occurrence of medical damages and rising awareness of safeguarding rights of patients, medical damage dispute has become a hot issue. From a legal perspective, we find that to make an accurate analysis of the various problems associated with medical damages and keep a balance between the interests of both doctors and patients are very critical to solving medical damages disputes fairly and reasonably.The term "medical damage" refers to the fact patients suffering in the course of medical treatments, which is not good to the interests of patients. It not only includes cases causing deaths, disabilities, injuries and tissue organ dysfunctions, but also contains the abuses of patients' rights of privacy and honor. Besides, it also includes the spirit of harm and damages to properties of patients or their families, solo property damage in name of medical treatments is included, too.On the nature of compensation for medical damages, there are various views, such as liability for breach of contract, tort liability, the coincidence of the two liabilities, etc. In all the views above, the coincident liability is recognized more widely, but in some degree, it should be limited in judicial practice.As for the imputation principles of compensation for medical damages, the main divergence in our academic studies is between the principles of fault liability and the no-fault liability. In consideration of various factors, the principle of fault liability outweighs the other one.Whether tort liability or liability for breach, elements of compensation for medical damages may consist of the medical damage facts, the faulty medical treatments, causalities between the two, and the cognition of the doer. In judging the elements above, how to define the duties of the medical institutions and medical staff is of vital importance. Its definition adopts the current medical standards in practice, combined with other supplementary judgment rules. Considering of liabilities distribution accurately and protecting the rights and interests of the medical side, content of exemption plays a very important role in the components of the theory of compensation for medical damages.The current compensation systems of medical damages have many flaws that need to be improved. For example:①The "binary" of applicable legal standards affect the impartiality, seriousness and unity of the law, and challenge the authority of the law, so we should strengthen the legislation and establish a "unification" in the legal gist.②Because the current system about the burden of proof may be not just to the suppliers of medical service, China should adopt a diversified one, based on the foreign relevant systems.③The "two-pronged" identification mechanisms do not meet the needs of identification system. We should focus on the reform of identification institutions and improve the appraiser system.④It is difficult for the one-off compensation mode to realize the interests of both the medical side and the patients, and to resolve medical damages disputes reasonably, so it is better to determine whether the damages should be paid with the combination of regular payment or not by the judges.⑤Because all the current three modes in solving disputes have some flaws, we should explore the feasibilities of medical arbitration system actively.⑥And the insurance system of medical liability should be developed energetically, too.
Keywords/Search Tags:medical damages, medical damages disputes, compensation for damages
PDF Full Text Request
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