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The Research On Causality In The Medical Tort

Posted on:2011-04-01Degree:MasterType:Thesis
Country:ChinaCandidate:F WangFull Text:PDF
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This paper discusses on causality of medical infringement, analyses a few questions within my theoretical level. The paper reviews the defination, uniqueness, and forms of causation and analyses doctrines related to causation on civil law and common law. It defines the standard of the theories of causation-in-fact and causation-in-law in medical infringement. Then the paper introduces and comments the proof of causation and the burden of proof, and selects a typical case and makes some analysis. The paper is divided into five parts. The five parts are as follows:Chapter one: the main content is an overview of causality of medical infringement. Causality of medical infringement can be defined as acts of medical infringement and medical malpractice the results caused of the relationship between them, medical infringement and personal injury patients must have a causation between the consequence. Only in the case of causation, medical institutions can be liable. Medical infringement, with the complexity of the analysis, is hard to judge with the general experience. The causality of medical infringement has six norms to express its characteristics.Chapter two concentrates on civil law and common law doctrine of causation. The civil law includes different theories. Digestion and absorption of these theories will help us to interpret the characteristics of causation of medical infringement to make the right judgments and scientific analysis. The common law divides causation into causation-in-fact and causation-in-law in medical infringement. The burden of proof causation-in-fact is on the plaintiff. If there is no causation-in-fact, the legal causation does not arise.Chapter three: on the bases of the analysis of the problem of identification of the first two chapters, this part, in the case of medical infringement, can be effectively identified the main responsibility for the determination of infringement, and limitation of liability in a reasonable range through causation. while the conflict is complex, combined with the special nature of health care, the main responsibility for the determination of infringement has even more elused in. Based on the special nature of health care, medical treatment should be a combination of realistic circumstances of each case, respectively, or a combination of the application of theory to identify the consequences of medical infringement and damage between the existences of causation. Compare of the difference of common law and civil law about causation, the common law identified the causal laws into two steps of causation-in-fact and causation-in-law. Therefore, the common law's type should be adopted. Based on the nature of each case, we should select the appropriate theory, respectively, on a matter of fact and law of causation. Causation-in-fact should be defined by acts of medical infringement or estimation of causation-in-fact. This part reviews the opinion that the judges should have the right to examine the truth of the conclusion of medical determination. It is very significant of the theory of previewed theory and equal causation theory. In the case of medical infringement, it should not be stereotyped to judge causation-in-law. Instead of it should be practiced through the judgment of court of justice.Chapter four discusses the proof of the causality of medical infringement and the burden of proof. With regard to medical infringement, how to prove in scientific research and the judicial practice includes three different doctrines. The doctrines of the burden of proof, such as the Germany, the United States, Japan and other developed countries are worth to study. There are principles such as "facts speak for themselves fault", "prejudice proof" and "the burden of proof conversion". Trial of medical causation disputes in China, we have imposed the burden of proof on plaintiff, its theoretical foundation is entirely the presumption of causation. Medicine with a high degree of professional and technical, under normal circumstances, patients and their families do not possess medical expertise. In the medical process, there are great differences of the patient status, inequality of the parties and the ability of evidence. The patient in China is always in a weak position, while the medical side has much more medical information, professional knowledge and asymmetric. So the patient is difficult to cite evidence. On the contrast, the medical side is even close to the evidence with the convenience of the preservation of evidence. From this perspective, the burden of proof has some reasonable upside. However, full implementation of reverse burden of proof on the medical side is not fair in terms of medicine there is great uncertainty. The medical side of health care, in order to reduce unnecessary disputes or to the medical litigation in the future to gain the initiative, is bound to wantonly expand the scope of the inspection. It is prudent to make a diagnosis, which led to the result of excessive medical treatment, such a "defensive" behavior change increase. This is not conducive to the development of medicine and society as a whole to protect the interests of patients. Through the above analysis in conjunction with the special nature of the medical profession, the proof of causal relationship is considered detrimental to the protection of the interests of affected parties. While the application of the presumption of causation entirely to the medical side is also unfair. So we might look at trade-offs apply to have conditions, the presumption of causation, namely, to ease the burden of proof.Chapter five discusses the contents of the paper topic is an application. This part selects a typical case, and try to make the analysis in order to apply the theory. Causation analysis of the case, the main application of the theory of dichotomy described in the paper are facts in causation and legal causation. We adopt thepresumption of conditional rules to prove causation.
Keywords/Search Tags:Medical tort, Causality, Identification, Burden of proof
PDF Full Text Request
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