A Study On The Issues Of Compensation Against Medical Injury

Medical dissension between medical staff and patients is the current social hot pot. However, compensation against medical injury is the conflict focus between medical dissension between medical staff and patient. In recent years, the medical malpractice disputes grow rapidly, but because of the medical laws and regulations of dispute damage is not perfect, resulting in the settlement of disputes arise in the course of a number of issues. Therefore, it is necessary to make a deeper study and discussion in these issues.This thesis is divided into five parts, the starting four parts are from the nature of compensation against medical injury, criterion of liability and its components, and compensation against medical injury disabuses onus probandi, proper law and compensation against medical injury to make a deeper discussion. On this base, the fifth part brings the countermeasure and suggestion to how to make our compensation against medical injury system perfect.The first part focuses on the responsibility for compensation against medical injury nature. Firstly, from the concept, the author makes an analysis of compensation against medical injury and medical differences and disputes that the medical tort disputes should not be defined only for medical damages, which also should not constitute a medical but the damage has occurred. Subsequently, from the nature of the doctor-patient relationship, the author analyzes that the physician-patient relationship is a special kind of medical services contractual relationship with some of the social and comprehensive, based on the author of the responsibility for compensation against medical injury the nature of the analysis and discussion. Theorists of the current compensation against medical injury responsibility to understand the nature of the existence of four, that is the responsibility of the lease that the tort liability that is co-responsibility for that choice infringement Responsibility that the author believe that compensation against medical injury liability for breach of contract and tort liability has co-responsibility.The second part discusses the necessary condition of compensation against medical injury responsibility criterion of liability. Firstly, the author introduces the damages into the criterion of liability tort criterion of liability, breach criterion of liability for damages and other debt on the criterion of liability. Based compensation against medical injury liability tort liability system and has the responsibility for breach of contract together, so the author of its criterion of liability and responsibility constitute the elements of infringement and breach of contract by the responsibility of the two angles are discussed. The author believes that the current compensation against medical injury disputes should apply the principle of presumption of fault, in exceptional cases can be applied to the principle of equitable responsibility. In addition, on the fault that can be Regulations on Handling Medical Accidents listed in Article 5 of medical and health management laws and administrative regulations, departmental regulations and norms of medical care, such as conventional obligations as determined by the criteria. Compensation against medical injury tort liability Elements should include the following four areas: the main medical institutions, medical institutions, there is fault, the fact that there is damage, medical institutions and the fact that the damage must have a cause and effect. Compensation against medical injury constitutes a breach of duty of the elements can be summed up as: medical treatment, Medical treatment with their legal obligations, the fact that damage, breach of statutory duty of the medical facts and damage the relationship between cause and effect. Medical malpractice tort liability of the elements of the responsibility for breach of contract and there are some elements of distinction, the author thinks that these differences, should be taken into account by the parties at the request of the right to choose.The third part analysis the problems in compensation against medical injury issues onus probandi. In this thesis, firstly the author introduces the concept and meaning of onus probandi and onus probandi converting. The author feels, the real onus probandi converting, should not consider too much the onus probandi about the distribution of laws, or it is the result of the law distribution make an distribution in another way. The author then again makes discussion on compensation against medical injury disputes the onus probandi analysis of the issues. I believe that for compensation against medical injury cases onus probandi converting practice is in line with the objective reality, the rules of evidence medical practice infringement dispute onus probandi converting, In fact the medical presumption of fault infringement disputes into areas of responsibility. It will be through no fault or cause and effect of the onus probandi medical institutions under the responsibility of the medical institutions to increase the onus probandi, as is conducive to safeguarding vulnerable groups suffering from the side of the legitimate rights and interests. However, on The rules of evidence of the provisions of this section, I believe that the right should be understood: 1, onus probandi converting only be used in medical tort litigation arising from the conduct; 2, although the implementation of onus probandi converting, but the plaintiffs still have negative onus probandi; 3, Medical institutions are not all negative onus probandi, but only for medical treatment and outcome of the damage does not exist between cause and effect and there is no medical mistake to assume onus probandi; In addition, there are still a transfer and distribution of onus probandi of medical staff and patients .The fourth part discusses compensation against medical injury and proper law. Firstly, the author makes a discussion on the laws and the current states of compensation against medical injury. Then, they bring their own understanding on proper law of compensation against medical injury issue. The author believes that as a result of the legislation on compensation against medical injury absence of a comprehensive and accurate system, in practice, the trial involved more heterogeneous laws and regulations; proper law in the biggest problem is the dual problem. On the current compensation against medical injury cases, the application of the dual legal issue, the author believes that the current situation in which the Supreme Court is not notice created, proper law of the dual structure of the existing legal framework, the realistic choice, it has a real need for judicial practice and basic , and its surface is not perfect the law and unity, but the deeper reason is our own executive power to the areas of basic civil right that is personal injury compensation legislation, leading to the destruction of the civil legal system defects caused by the legislation. As a result, the legislative shortcomings in the judicial practice can not be changed. I believe that for compensation against medical injury disputes in the proper law, should eventually unify General Principles of Civil Law up the broad framework.The author believes that as a result of the legislation on compensation against medical injury absence of a comprehensive and accurate system, in practice, the trial involved more heterogeneous laws and regulations; proper law in the biggest problem is the dual problem. On the current compensation against medical injury cases, the application of the dual legal issue, the author believes that the current situation in which the Supreme Court is not notice created, proper law of the dual structure of the existing legal framework, the realistic choice, it has a real need for judicial practice and basic ,and its surface is not perfect the law and unity, but the deeper reason is our own executive power to the areas of basic civil right that is personal injury compensation legislation, leading to the destruction of the civil legal system defects caused by the legislation. As a result, as the legislative shortcomings in the judicial practice can not be changed. The author believes that for compensation against medical injury disputes in the proper law, should eventually unify General Principles of Civil Law up the broad framework. The fifth part is about improving our system of compensation against medical injury countermeasures and suggestions. The author believes that improving our system of compensation against medical injury, should first determine our compensation against medical injury compensation system that is the principle of full compensation principle; Second, taking into account the medical Suffering from the special nature of the relationship between the state legislature is bound to be special legislation, that is, the development Law of Compensation against Medical Injury. Medical liability insurance system to resolve as compensation against medical injury risk, to protect the healthy development of the health care industry is an important guarantee, China has started to build, but is still far from perfect, it is necessary to vigorously promote and improve, through the establishment of specific responsibility for the compulsory medical insurance, reform of the pricing system to set up a third-party liability finds that mechanisms be completed. Arbitration as a medical important non-judicial means of dispute resolution proceedings, with a fair, efficient, economic, security, etc., can serve as a supplementary means of justice, should be taken seriously. In the light of the current arbitration system and the mode, it can be promoted by the government.