Font Size: a A A

A Research On Main Disputes For Compensation Of Medical Damage

Posted on:2008-07-30Degree:MasterType:Thesis
Country:ChinaCandidate:Z H GaoFull Text:PDF
GTID:2166360242459876Subject:Law
Abstract/Summary:PDF Full Text Request
The dispute over medical damage not only directly damages the life and health of people, causes injury to suffers and mental anguish and loss of property to suffers and their relatives, but also strongly influence normal medical behavior of medical institution and seriously hurt the reputation and property of medical institution and medical personnel. The dispute over medical damage has become the focus and difficulty of pubic interest since its result of involves the rights and interests of suffers and medical personnel, medical order, medical safety even social stabilization. Therefore, correctly understanding and applying laws, administrative rules and judicial interpretations including Medical Accident Disposal Ordinance, the General Provisions of the Civil Law, civil procedure act, Several interpretations on hearing compensation for medical damage by the Supreme People's Court and some regulations on Evidence in Civil Procedure by the Supreme People's Court, etc, conquering the conflict between laws and administrative rules, appropriately solving the problems about substantive law and procedural laws and protecting rights and interests of suffers and medical personnel are still important task for theorists and Judicial work. The author states structure of liability for compensation for medical damage by analyzing the characteristic of liability for civil compensation for medical damage; moreover, the author puts forwards the concept of changing from centralizing to dualization about compensation for medical damage basing on analysis of dualization concerning applied law in for medical damage; meanwhile, the author discusses the dispute over compensation for medical damage expertise and problems about burden of proof for improving the legal system concerning compensation for medical damage.This thesis consists four chapters. The first chapter mainly concerns the characteristic of liability in medical damage, which includes two parts. In the first part, the author mainly discusses the characteristic of liability for civil compensation for medical damage. The liability for compensation for medical damage belongs to civil liability firstly, and the characteristic of civil liability. When liability for damaging rights and the liability for breach of contract exist together in the dispute between sufferer and medical institution, the characteristic of civil liability in case of dispute between sufferer and medical institution should be judged according to the party's cause for demanding compensation for damage.The second part deals with the structure of liability for civil compensation for medical damage, and the author mainly discusses important elements of compensation for medical damage caused by damaging rights: i) illegal behavior, which means that medical institution disobeys their supposed obligation with the forms of execution and nonfeasance; ii)medical damage, which refers to the fact of bad consequence resulting from medical behavior during medical care; iii)mistake, which refers to subjective mental attitude of actors when they do; iv) the causal relationship between illegal behavior and results of damage. The second chapter mainly concerns the application of law in compensation for medical damage which includes four parts. The first part mainly deals with the developing process and reason of dualization concerning applied law in medical damage. Currently, the legal base for it in hearing this kind of cases are the General Provisions of the Civil Law and Medical Accident Disposal Ordinance worked out by the State Council, which just solves the problem of bearing liability for dispute over medical accident in specific meaning and doesn't possess regulation on disposal of general dispute over compensation for medical damage. On Jan. 6, 2003, the Supreme People's Court issued the ((2003)No.20) Notification concerning hearing the civil cases of dispute over medical damage with reference to 'medical accident disposal Ordinance' which means that Regulation and the General Provisions of the Civil Law are both can be applied, so as to form Chinese unique phenomenon of dualization concerning applied law in medical damage. In the second part, the author introduces the influence of dualization concerning applied law in medical damage on judgment, namely, the unified compensation standard results in that judgment is unified, party is dissatisfied and has negative influence on healthy development of medicine. In the third part, the author introduces the choice of dualization concerning applied law in medical damage in practice of hearing cases. The different compensation standards in Regulation medical accident disposal Ordinance directly effect parties' choices towards legal relationship and legal results after judgment. The author believes that it is necessary to correctly understand the relationship between them and apply them separately. In the fourth part, the author puts forwards the conceptions of changing from centralize to dualization and approach to reform. The third chapter mainly deals with expertise in case of compensation in medical damage. In the first part, the author manly introduces the concept and significance of medical damage expertise, which refers to that organization of medical damage technology certification appointed by judicial and administrative departments or party independently certifies and judges some disputes such as whether medical care is wrong or not, whether medical care results in bad results or not and whether forms medical damage or not. Medical damage expertise can nail down whether forms medical damage or not and the liability share when medical damage appears, which solves the problem of source of evidence for two parties and is the important approach for improving health service. In the second part, the author introduces the category of medical damage expertise, which can be classified into administrative expertise, self-expertise and judicial expertise according to different conditions. In the third part, the author introduces the concept concerning how to solve problems about expertise in trial practice. The expertise in disorder is an outstanding problem in dispute over compensation for medical damage, and differentiation between medical accident expertise organizing by medical association and judicial expertise during litigation isn't clear, which results in the complicated problem of how to entrust expertise in this kind of disputes. This thesis discusses the problem in terms of different stages. The fourth chapter mainly concerns burden of proof in case of compensation for medical damage which includes two parts. The first part deals with the basic theory about burden of proof, which refers to parties' liability of providing evidence for improving their facts or claims during litigation and bearing disadvantage when evidence aren't sufficient. Assignment of burden of proof means that burden of proof for different fact should be assigned between two parties according to certain standard, that is to say, the burden of proof for some facts rests on accuser and some rests on defendant. In the second part, the author introduces the assignment of burden of proof in dispute over compensation for medical damage in china. Aiming at the wrong idea about that sufferer doesn't have burden of proof because of burden of proof inversion in the case concerning dispute over compensation for medical damage, the author believes that burden of proof inversion for mistake is applied in this kind of case, namely, part inversion. Moreover, as accuser, sufferer should prove that medical relationship and results of damage exists, and then puts forwards the content of burden of proof that medical institution should bear in terms of current laws and regulations.
Keywords/Search Tags:Compensation
PDF Full Text Request
Related items