Research On The Medical Compensation Responsibility Of The Wrongful Birth

This article is about the medical compensation responsibility of the wrongful birth , which combine the home and abroad case in judicial practice to analyze .The congenital flaw babies who bring to family the painful and economical burden because of the wrongful birth , which carries on the legal relief discussion . This article has the opinion that no matter in every sense the court should support this kind of lawsuit . During the action of this kind of case the influence of the newborn to the family should be fully considered, then make the judgment which is good to the family harmony, and the social stability .The introduction part introduced the writing background, the goal, the significance, proposed concise viewpoint to this article.The main text is composed by four parts.The first part is the introduction of the origin and development of the wrongful birth lawsuit. And the wrongful birth lawsuit should be supported. This concept is earliestly proposed by the American scholar. When elaborating this question, the author firstly introduced the USA's case which earliestly appears, and revealed the characteristics of the wrongful birth. Next the article has carried on the comparison of the legal regulations from various countries and areas, and introduced several illustrative cases. The Court of our country has not reached the consensus to the decision of this kind of case .This part is the key point of this article. First of all, it introduces the reasons, which does not work as the birth damage compensate, and aims at these reasons to carry on to be refuted. Through analyzing American and the mainland legal system countries to this kind of case processing, it does not prove when is born should give the support to have the basis in the example. Possessing nearly about "wrongful birth" the argument all focuses on the damage compensate and in the life value conflict question, therefore it has carried on the elaboration to this question. The author does not think when the birth damage compensate should give to support which is based on the following several aspects: 1. It is the citizen giving birth the power the inevitably request; 2. It may lighten plaintiff's economic burden; 3. It may deter and prevent in the pre-natal medicine inspection the negligent act.The second part analyzes emphatically has not worked as birth medical service damage compensate request power nature. From request power concept obtaining to requested the power the nature has made the general classification and the brief introduction. First, from "Maternal infant Health care Law" and "Maternal infant Health care Law Implementation Means" the correlation stipulation begin to elaborate do not work as the birth damage compensate responsibility is the violation responsibility, because doctor's pre-natal diagnosis duty request medical establishment certainly need to carry on when the discovery legal rule further diagnoses must earnestly diagnose and in detail inform the pregnant women and the family members. Next, the encompassment abuse of authority constitution important document carrieson the analysis, explains the harm has as well as the causal relation existence truly, has proven not when the birth medical service damage compensate responsibility simultaneously constitutes the right infringement responsibility. Finally, when elaborating the birth medical service harm not to accompany fulfills a responsibility if the violation responsibility and the right infringement responsibility competes gathers.The third part is about not when the birth medical service damage compensate responsibility turns over to the responsibility principle the analysis. First, it briefly introduces general abuse of authority several kinds turning over to the responsibility principle. Then it has drawn out the mistake estimation principle, and introduced this principle emphatically. The mistake estimation is actually the mistake principle one kind of special manifestation. After the analysis, the author does not think when the birth damage compensate turns over to the responsibility principle to be supposed to be suitable the mistake estimation principle. This parents' benefit which is at the weak trend position regarding the protection has the advantage. Simultaneously also may play to medical establishment's deterrent role.The forth part is about doing not work as birth medical service damage compensate responsibility realization question. First, it analyzes proposing the request power main body, namely birth child's parents. Next, it has analyzed not when the birth medical service damage compensate responsibility undertakes the main body, namely conforming to the condition medical establishment. Once more, performing from the violation responsibility and the right infringement responsibility angle to analyze do not work as the birth medical service damage compensate separately the scope.