Research On The Question To The Compensation For Medical Damage Of Non-medical Malpractice

Medical damage of Non-medical malpractice is an important component of medical damage. In the previous, medical damage treatment are generally first determine whether the medical malpractice. If it constitutes a medical malpractice, in accordance with the "Ways of the Handling Medical Malpractice" and" Regulations on Handling Medical Accidents" to deal with. If it is due to other than medical malpractice torts, the disputes were handled in accordance with the general infringement. "Ways of the Handling Medical Malpractice" and" Regulations on Handling Medical Malpractice" mainly regulates the meaning of medical malpractice, handling procedures involved in medical Malpractice in special, but does not involve the handling of medical damages of non-medical malpractice. Medical damage of Non-medical malpractice as a meidical damages, concerning a medical profession which is comprehensive, complex, high-risk, uncertainty of specialized industry, only in accordance with the general infringement disputes to deal with, but there is no specific legal regulation, seems very wrong. Promulgated in 2009, "Tort Liability Act," uses special chapter providing medical damages, here medical damages should be included in medical malpractice and medical damages of non-medical malpractice. Because the "Regulations on Handling Medical Accidents" is put into practice, the "Ways of the Handling Medical Malpractice" has been abolished. In this paper, based on the "Regulations on Handling Medical Accidents" and "Tort Liability Act",explores the questions to the compensation for the medical damages of non-medical malpractice.This study focuses on the analysis of the various parts of the component of the liability for medical damages of non-medical malpractice, in order to establish the theoretical system of medical damages of non-medical malpractice liability. The difficulties of the Study is the defining the meaning and types of the medical damages of non-medical malpractice, and medical fault identification.In the structure, the article is divided into four parts of the discussion:The first part fdefines the meaning of the medical damages of non-medical malpractice in the first. Elaborates the definition of medical malpractice in the laws of Japan and the United States, and analyzes the definition in China's law. On this basis, defines the meaning of medical damages of non-medical malpractice, and Analysis the three types of them. Then explained the nature of the liability for medical damages of non-medical malpractice. First, defines the compensation liability as civil liability.Then discusses the violation responsibility and the right infringement responsibility for medical damages of non-medical malpractice. Finally elaborates the competing theory of the violation responsibility and the right infringement responsibility, and thinks that the medical damages of non-medical malpractice according to the right infringement responsibility processes is quite advantageous in protecting patient's rights and interests.Part two has mainly analyzed the various consititution of the compensensation liability for medical damages of non-medical malpractice. First elaborates that mainly undertakes responsibility person is medical establishment, including the defining of medical personnel, the scope of medical institutions which shuold undertake the responsibility, and elaborates theoretical foundation of medical institutions undertaking the substitution responsibility. Second, explaines the concept and the four types of medical damages of non-medical malpractice. Once more, after defining medical behavior, ueses the theory of causal relation in UK-US law to analysis the causal relation of medical damages of non-medical malpractice. Finally, explains subjective fault of the medical author, including the meaning of the medical mistake, the analysis of the medical duty of care, and the identification of medical mistakes in "Tort Liability Act".Part three, after introducting the relief matter of medical damages of non-medical malpractice in the present situation of our countries'law, constructs the relief matter of medical damages of non-medical malpractice, including medical Accident, medical personnel in emergency situations having done the greatest duty of care, permissibility danger, Patient reasons.Part four, From the two aspects of the medical illegal behavior and medical Onus probandi assignment, elabrates the influence of the promulgation of "Tort Liability Act" to the compensation of the medical damages of non-medical malpractice, and discusses the relations between "Tort Liability Act" and "Regulations on Handling Medical Malpractice".