On Decision Of Negligence In Meidical Tort

Medical tort is a branch of torts and medical negligence is one of the elements of medical tort. Medical services touch the lives of everyone and raise fundamental questions of about life, death and many of the things which happen in between those two events in people's lives. A medical malpractice is not easy to be distinguished from a proper practice because the boundary between is obscure and a series of factors must be taken account of. The determining of whether there was a medical negligence is the key to medical tort and the most difficult part. This article will focus on the decision of medical negligence. The text is composed of three parts as following:The first part analyzes and evaluates the present status and problems in the legislation and judicature of our nation. First, this part provides an introduction and overview of the law about the concept of medical negligence and the duty of care that a doctor owes to his patient and the judgment of the breach of the duty. Secondly, using positive analysis method this part of the article analyses and evaluates several aspects of determining of medical negligence in current judicial practice of our nation.The second part mainly discusses about the theory of determining the medical negligence. Using the comparative analysis method this part analyses the theory of negligence in common law and in continental law, and the application of the theory in medical negligence such as the concept of medical negligence, the duty of care that the medical institute and its staff owe to the patient, the standard to judge medical negligence and the consent to treatment.The third part puts forward some legislative proposals about the decision of medical negligence such as clarifying the judgment standard of breach of the duty of care, improving the law system of the medical negligence authenticating and strengthening the protection of the patient's consent.