Research On Doctors' Responsibility For Gaffe From Tort Perspective

In recent years, the medical disputes have become a hot social issue. All sectors of community are deeply concerned about properly handling medical disputes to protect the legal rights and interests between the doctors and patients.In china, the best choice to settle the disputes between the doctors and patients is to use liability for tort either from the theory and judicial practices. From the point of infringement, the existence of medical negligence is the precondition of responsibility for the medical behaviors. The medical fault comes from the violation of its obligations. It is a failure of the medical staff to fulfill or fulfill fully their duty concerning the most kind and carful attention, therefore result in damage suffered by the patients. The key point of resolving medical disputes lies in identifying medical negligence. Britain and the United States have established several the judgment approaches, such as "regional standard", "respectable minority" and "the best judgment law rule", Japan also invented some judgment approaches, such as "medical level ","rules of law". Identification approaches are deeply influenced by the professional characteristics and special aspects of medical area.By analyzing the special features of the medical treatment, taking into account judgment standard used abroad, and considering the current legislations existing in China, some amendments should be made to identify the doctors'faults, including establishment of the general standard to find the doctors' fault, considering synthetically other factors that may influence cognizance of doctors' fault, thinking over the morality of doctors'behaviors and taking into account the need to encourage progress in medicine.Fault presumption is good for the protection of interests of injured party. It strengthens the strict responsibility, and aims at providing for the injured remedy. The function of fault presumption deviates from education and prevention to redress. Burden of proof is of extreme importance. Application of the presumption of fault is the result of balancing between the need to protect personal interests and the need to decrease social risks.