Research On The Question To The Compensation For Medical Damage

The author discuss the issue of research on the question to the compensation of medical damage from five parts:summarization of the subject,the substance of medical damage,the responsibility of medical damage ,the application of the relative law and the perfection of the relative law.In the first part,the author make a berief introduction of medical actions and medical dissension . The medical actions is the complex medical service with particular aims provided by the medical organization and person working in it . Medical dissension arise from between the two parts:patient and medical personnel . Medical dissension including the dissension of contract and the dissention of invasion of right . The medical main body include the medical organization and medical personnel.the former comprise the hospital ,therapy organization and clinic etc. As the hinder is the person working in the medical organization including doctor, nurse and others of logistics management.Then the author illustrate the meaning of compensation of medical damage, including generalize content and narrow sense. At the end of this part, the author discuss the difference between the dissention of compensation of medical damage and contract of medical service .In the second part ,the author discuss the substace of the compensation of medical damage.The author give us the notion of the compensation of medical damage and. the common compensation of medical damage .As to the compensation of medical damage ,the author cite the administrative laws made out by the national government to illustrate some specific situation,then the author refers to the advices made by the advanced court of Beijing which named"how to hear the dissention of the compensation of the medical damage". Beyond the scope of the common compensation of medical damage ,the classic common compensation of medical damage is the medical compensation caused by medical accident .Medical accident is the damage by medical personnel during his/her serving as the patient,which the damage does not cause the patient's death ,disable ,function obstacle etc.serious outcomings.The author discriminate the medical accident into the serious medical accident and the common medical accident according to the medical damage outcoming .All the medical invasion of right attribute to the common compensation of medical damage only in the situation eliminating the situation of medical accident .About the problem of the boundry of the compensation caused by medical damage and medical accident ,the author assume that the identification is the point and cite relative law.In the third part ,the author point out the composing part ,onus probandi of the medical damage . There are various attitudes about the composing part of the medical damage.But the theory is mainly about"six components"according to the law applied in our country.(1)The main body must be the legal medical organization and medical servicer.(2) The medical damage must be occur in the course of medical activity (3)violations of legal duty (4)actual losses or damage (5)the relationship of consequence (6) the dermit of the people . As the attributing principle of the medical damage ,the author think that the faulcy will be suited.So there are also four elements for the liability of compensation for medical damage.Supposing the causal connection between tortuous conducts and fault,the defendant will escaping be blamed with his proof of having no faulcy.So the duty of quotation will benefit the fact and the true situation.In the fourth part the author analyse the application of the relative law and the scope of the compensation.There is a seriously dispute among our nation about medical compensation.The author analyse our legislation and put forward several suggestions .About the scope of the medical damage ,we can separate with two kinds:the damage of property and the damage of non-property,during the condition of the damage of property ,it consists immediate and indirect damage.The compensation of the immediate damage embrace the expense following:medical treatement ,tender ,the mess staying in hospital ,transportation,funeral disable-aid appliance ,nutrition etc.The compensation of indirect expense embrace the expense following:working delayed,compensation of the disabe,maintenance and death.Non-property damage is the mental damage . In the fifth party,the author put forward several suggestion to perfect our legislation.The author emphasis the principle of lawmaking and the body of the law of the compensation of the medical damage.About the principle of the compensation of the medical damage ,the author consider the following:firstly it is to obey our constitution and other laws,secondly it is seriously to protect the right of Health and Human of our civic,thirdly balance the profit of the medical organization and the medical serviced person.About the body of lawmaking of the compensation of the medical damage ,it is popular to make an special law. But it is urgent for our judicatory organization to settle down the explanation of the law to direct our hear and at the same time to end the chaos of the application of the relative law.Not only we can protect the legal benefit of the patient and the medical personnel but also we can propel the step of lawmaking to provide the specific and practicable law finally.