Research Of Civil Liability Coincidence For Medical Damage

Medical disputes are disagreements and arguments between doctor and patient during the diagnosis and nursing. In recent years, with the medical structural reform and citizens' increased legal awareness, especially their raised right safeguarding awareness, there always exist more and more contradictions between their expectations to the health of their own and families and clinical science, thus bringing a great deal of medical disputes regularly in the medical structure and civil life. Medical disputes are both hotspots in the civil life and difficult points in the judicial action in China. Dealing with medical disputes correctly is not only a work with great science and policy, but related to both the civil rights of life, health and bodies and existence and development of the medical structure and improvement of clinical medicine, as well as social peace and harmony, meanwhile accompany with the struggle to diseases all along.With Medical Malpractice Processing Ordinance and Stipulation About Civil Case Evidence put in practice one after another, situation has been improved more or less, but there are many problems. In the problems, is civil liability of medical damage a breach of contract or a tort, or a coincidence of the two?Modern civil law has made individual applicable area and system. As breach liability and tort liability have different formative reasons and legislative basis, the coincidence of them become focus disputed in the research of civil law unavoidably. In the medical damage liability, it is more obvious and complicated to coincidence both of them. When there is a medical contract between a doctor and his patient, medical damage forms both breach liability because of being suitable for the structure factors and tort liability with the patient's rights of life, health, body and honor infracted. To begin with the civil liability of medical action and damage, the thesis compared breach liability with tort liability in the damages with great disputes in recent years, discussed liability coincidence of the two, and gave my own view on it. The whole thesis consists of about Forty thousand words.The thesis is made up of three parts: the preface, the text and the conclusion.The preface explains the writing motive, current research situation, Research approach and thinking of writing of this text .BY doing so, it provides the foundation for the argumentation of the text.The text part is made up of four chapters.Chapter One defines the basic concepts that this text involves .This text adopts the view of the medical behavior in broad sense When it comes to medical damage, the text takes the Theory of Damage Fact and defines it as an element of medical damage liability .It defines the concepts of medical damage liability by comparing with relevant concepts with other countries and areas.Chapter Two deals with the emergence of medical damage liability. The chapter first introduces the general theories of the coincidence of liability, then analyzes the three kinds of relationship between doctors and patients. On the basis of that it defines the scope of the coincidence of medical damage liability. And take the coincidence of contractual and tortuous liabilities as the key analytic target.Chapter Three analyzes the compositions and characteristics of liability of medical damage for breach of contract and for tort separately, and compares them based on this. By comparison we can find that the two liabilities has become very similar in liability principle and burden of proof ,while they still have a lot of differences in lawsuit prescription, counteraction, subject of claim for damage compensation, jurisdictional court etc.According to the trend of fusion between the liability for breach of contract and liability for tort and the study thinking of medical expert in other countries, combined with the practice of dealing with medical damage in China, Chapter Four puts forward the solution.The last summarizes the opinion of the full text, and draws the conclusion.