Confirmation Of Fault On Tort Liability Of Medical Malpractice

Leaders of the Party and the central government have put forward a people-oriented goal to establish a harmonious socialist society. Medical activities and the lives of the people are closely related, So, establishing a harmonious relationship between doctors and patients is an important factor in building a harmonious society. Under the existing medical technology, the occurrence of medical incidents and protect the legal interest of both doctors and patients is a very practical problem. This paper tries to explore"fault", which is an element in identifying a medical incidents.Except for introduction and conclusion, this paper is devided into five parts:Partâ… : The meaning of fault and its evolution. As an element in assuming responsibility for one's tort,"fault"originated in Roman law. France and Germany, as the representative of the Civil Law System, followed suit. Common Law System, which is represented by England and America established the standard of fault by stare decisis. With the development of history, the two law system have given new meaning to"fault", the standard of judging fault gradually turned from subjective to objective. In medical liability, fault refers to the negligence or loxity, violating the medical and health management laws, administrative regulations, departmental regulations or the care standard of diagnosis, and causing physical damage to the patient: Such fault includes subjective and objective aspects.Partâ…¡: The standard of identifying fault in medical tort. In medical tort liability, the standard of identifying fault is devided into two groups: one is the abstract standard, the other is the specific standard. According to abstract standard, medical activities should have the attention of the general level. If any medical activity fuits to meet that standard, it is thought to be"fault", it is applicable to all kinds of medical activities. Abstract standard includes the level of medical practice, regional factors, professional factors and emergent factors. The specific standard refers to how to identify whether there is"fault"in a specific medical activity, and it differs a little in different medical activities. The specific standard includes obligations stipulated by laws, regulations rules and medical practice. In judicial practice, the two standards are always combined to draw the oppropriate conclusion.Partâ…¢: The specific types of"fault"in medical tort. Medical activity is a series of processes, mainly including diagnosis, frcatment, surgery, anesthesisa blood transfusion. radiation therapy and so on. These processes may differ according to the different condition of the patients. Fault in certain periods have their own characteristics, to make type differiation is helpful to the identification of fault in certain circumstance.Partâ…£: The denying of fault in medical tort. This section discusses the dangers that are allowed in medical activities. The allowed dangers deny the fault in aggressive medical activities. In addition, the fault is ruled out in medical activities which are based of the medical institutions and their staff on the consent of the patient. However, whether it is based on the allowed danger, or on the consent of the patient, the denying of fault should be applied under some certain conditions. The allowing of danger should be detemined by three aspects: the important of the legitimate rights that is injured, the object to be Roman, the condition under which the consent is made, the capacity to make a consent, and so on, should be taken into consideration.Partâ…¤:The major problems in identifying fault in medical tort liability in practice and how to improve the major problems in identifying medical tort are that the standard of judging fault is too simple. Whether there is fault in a medical dispute and the causal relationship between fault and the consequent damage are not clearly stated, and the standard of identifying fault is not unified, etc. In response, in making a decision, the judge should state more clearly whether there is fault, the degree of fault and the relationship between fault and the damage, and enhance the uniform application of the law.