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A Study On The Civil Liability For Medical Damage

Posted on:2008-09-27Degree:MasterType:Thesis
Country:ChinaCandidate:S L GuoFull Text:PDF
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Compensation for medical damage is one of the focuses of medical dispute which has become a hot issue recently. How to solve the compensation for medical damage properly to protect the vulnerable groups'--patients'interest and promote medical research to obtain a balance for human health has become the focus of medical and law circles. General Rules of the Civil Law of the PRC and Medical Malpractice Handling Regulation, issued in 2002, which have played a positive role in medical damage compensation problems, are still too brief to solve many disputes in practice. Therefore, a further analysis is needed for medical damage compensation in practice in order to solve the disputes properly and fairly, protects the legal rights both of the doctor and patients and promotes the medical science's healthy development. Civil liability in medical damage compensation is taken as the thesis of this thesis, with the hope of helping the improvement of the laws concerning medical damage compensation. To discuss the civil liability in medical damage compensation, this thesis consists 5 parts.In Part 1, it is introduced to the conception of medical damage is expatiated and analyzed on the character of civil liability in medical damage. Civil liability of medical damage is breaching medical contract at the first place. Three factors should be considered when to determine the liability of breaching medical contract: first, the medical institute and its medical staff have breached the contract; second, the patient's legal right has been damaged practically; third, causality exists between the breaching of medical contract and the damage. Civil liability of medical damage is also regarded as a tort liability by the author. Four constitutive requirements of medical tort civil liability are expatiated. First, breach of duty is a necessity; second, certain damage has been made to the patient; third, an objective fault must exist; fourth, causality exists between the medical negligence and the person injury of the patients. A concurrence of breaching of contract and tort liability may occur in the civil liability of medical damage. In this case, four factors should be taken into consideration: doctrine of liability fixation, burden of proof, the scope of cover and aging.In part 2, it is discussed about the doctrine of liability fixation of medical damage civil liability, including the doctrine of liability fixation of medical damage tort civil liability and the civil liability of medical damage caused by breaching of the medical contract. Right of claim concurrence is the main representation of medical damage civil liability while in most cases, tort liability is indicted. Therefore, the doctrine of liability fixation of medical damage tort civil liability is analyzed in detail in this thesis. It is suggested that fault-understood principle be adopted in this case. Then, the party's onus probandi in the medical tort disputes are expatiated in this part and the inversion of onus probandi is emphasized. The onus probandi inversion in medical behavior in The Provisions on the Evidence for Civil Procedure in Supreme People's Court does not release the patient from all the onus probandi but make a fair distribution of the requirement onus probandi in trot behavior. That is to say the onus probandi of causality between medical behavior and damage and the objective error of the medical institute out of the four aspects of tort lawsuit claim are shifted to the defendant from the accuser (patient). But the accuser (patient) still has the onus probandi of the damage compensation claim right. That is to say, the accuser should prove that he or she has medical service contract with the medical institute and has received treatment from the institute which leads to the damage.The law application of civil liability of medical damage is discussed in part 3. The common case is discussed first. According to the general principle of law application, special law has precedence over common law. In the case of medical lawsuit, the General Civil Law is the common law while Contract Law, Consumer Protection Law and Product Quality Law are the special laws. The lower stage rules should submit to the higher one. In medical tort case, should the compensation standard obey the Medical Malpractice Handling Regulation or the standard from practice? Further discussion is made on this topic. Two differences in the application of Medical Malpractice Handling Regulation and General Civil Law are analyzed. One is the compensation scope of the medical damage, the other is the calculation standard of compensation. The results of analysis show that General Civil Law is more powerful than Medical Malpractice Handling Regulation in protecting the patients'rights in both compensation application and standard. Finally, the application of Consumer Protection Law in civil liability of medical damage is analyzed in this part. The author regards Consumer Protection Law is more applicable for managing medical institute.In Part 4, it is discussed the compensation scope in medical damage, including pecuniary damages and mental compensation. Pecuniary damages are further divided into direct loss and indirect liability. Problems concerning pecuniary damage are expatiating in detail. By discussing the mental compensation for medical damage, the author comes to the conclusion that two principles should be adopted in determining the mental compensation--consoling rather than compensating; limited discretion principle to the judge.The shortcomings in China's compensation rules of medical damage are discussed and suggestions on improvement are raised in Part 5. The deficiency in China's medical damage compensation rules is mainly in specific legislation and guiding ideology to legislation. The author takes Medical Malpractice Handling Regulation as an example to discuss the deficiency in specific legislation. The regulation and its corresponding laws have many irrational parts, which are mainly exhibited in the start-up of medical accident evaluation programs and medical expense compensation standard and the form of compensation. Finally, three suggestions are raised for China's medical damage compensation--first, a good medical damage compensation law should be enacted; second, medical evaluation regulation should be reformed; third, medical insurance system should be established.
Keywords/Search Tags:Liability
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