The Study Of The Identifying Standard Of Medical Negligence

As we all know, the function of"attribute liability to fault"principle in Tort is to distribute the society risk reasonably by identifying fault scientifically. Under the condition of more and more medical malpractice suits emerging in these years, judges have been faced to a choice in the conflict between two kinds of interests. And the characteristic of medical industry is the cause of this conflict. On one hand, the judges need to protect the rights and benefits of the patients who are always the weaker ones in medical relationship by legal procedures; On the other hand, they also need to identify if there is medical fault of specialists in medical industry reasonably and correctly in order not to hurt the working enthusiasm of medical specialists. Because the result to make the medical specialists so easily to be accountable for their medical malpractice would be a negative reason to slower the developing rate of medical industry.The identifying of medical fault is the most important part in the identifying of medical liability. But we can find that the traditional medical fault identifying standard has some shortcomings about too abstract and unfeasible in practice by study at the medical fault theories in China and other countries. So the aim of this article is to try to find and construct a more material and clear identifying standard system of medical fault on the basis of the previous research results in and out of China, hoping this system should present a new academic foundation and new thinking mode in the area of liability judgment in medical malpractice.This article totally includes there parts. The discussing method used in this article is the traditional one. It will begin from the problem-presenting part, then go to the problem-analysis part, at last, end at the problem-resolving part.Chapter 1 is the summarization of medical fault. Because this word of medical fault comes from the definition of fault in common Tort law with some medical feature, so we should know exactly the meaning of fault in common Tort law before we try to define the word of medical fault. There are several familiar definitions relative to medical fault in real life. So the comparative study about the sameness and difference about these words should be useful to understand the exact meaning of medical fault in this article. Then, we will guide the discussing direction from the medical fault to the identifying of medical fault by analysis of the value and interests conflict of medical fault identification. The last part of Chapter 1 would analyze the influence of characteristics of medical fault to its identification.Chapter 2 will present the puzzle faced by the traditional theories of medical fault identifying standard in practical utility by studying of the developing route of traditional medical fault identifying theories and the differences of their contents. Although the thinking methods are so different in different countries, but the study logic is the same on medical fault which is start at the common fault in common Tort, then to the professional tort, and at last to the medical fault. And the study result of medical fault identification in China includes two medical fault identifying standards. One is the medical duty of care theory system and the other is the medical level standard. But the problem is that both of them are too abstract and hard to use in legal practice.Chapter 3 tries to make the medical fault identifying standard more concrete than before to resolve the problem of unfeasible in traditional medical fault identifying standard theory. And the way how to realize that is to construct a concrete medical duty of care system. Besides the medical duty of care system identifying standard, there are also some other subjective and external factors which should be considered together in the medical fault identifying process. And at the last part of Chapter 3, we can change our role to classify the medical malpractice into there different types. So we can discuss how to use the medical fault identifying standard analyzed before in the real clinical conditions.In this article, the author paid more attention to contact the result of the search to the real medical practice. So there are many real clinical cases in this article which would strengthen the persuasion of this article. Also, this article used the comparative method in study of the medical fault theories out of China to clarify the common characteristics and the differences. Moreover, the legal explaining, pluralistic analysis angles and thinking from another side are also the methods used in this article.The value to this article includes three parts. Firstly, the author try to find the developing clue and rule of the medical fault identifying theories in the past, and present some new ideas and opinions in this theoretical area. Secondly, as a legal student with clinical experience before, author used medical knowledge and clinical experience in analysis of such topics as:"How the Characteristics of Medical Behavior Effect the identifying of Medical Fault","the Partition to the Concrete Content of Medical Duty of Care", and"How to Use these Medical Fault identifying Standard in different kinds of Medical Malpractice"Thirdly, the study result of this article could reflects the characteristics of medical behavior comprehensively and externally. So it will also be feasible and available in practical use. Fourthly, thinking about how to use the medical fault identifying standard in different kinds of clinical malpractice would be another creation in this article.