The Fault In Medical Right Infringement Of Civil Liability

In recent years, physician-patient relationship has become strained .the news of "astronomical" medical expenses, family members of patients on the medical staff in hospitals and even kicked up a personal injury repeatedly hit the newspapers, medical malpractice litigation, was more showed an upward trend year after year. As the treatment of the professional nature of risk and the relative certainty of the results, Identification and proof of medical mistakes had proved to be the the difficulty and focus of medical malpractice cases. "The People's Republic of China Tort Liability Act" (hereinafter "Tort Liability Act") on December 26, 2009 passed, the law on Identification and proof of medical mistakes got new requirements .However, I believe the above-mentioned legal provisions need further refinement and perfection.This essay have more than 30000 words, can be divided into four parts. The first part is an overview of medical mistakes, analyzing the content of medical mistakes and its meaning of medical tort liability constitution. In practice, as medical mistakes mainly for medical negligence , analysis of medical mistakes will focuses on medical negligence. At the same time, combined with the special nature of medical service activities, that is professional, ethical, and invasive characteristics, This essay deal with the distinction between medical intentional and medical negligence, negligence and medical negligence.The second section deals with the identification of medical mistakes. In this paper, a comparative analysis of the use of the method, comprehensive survey of the extra-territorial identification of the rules of medical mistakes - Japan's "standard of medical treatment" Britain's "breach of an obligation " as well as the principle of trust in Germany, and on this based on the determination of medical fault standards and principles applicable in the recommendations. Secondly, elaborated that China's medical fault identification rule is a combination of "breach of an obligation " and "standards of medical care ".At The same time, analyzing the judge's discretion and conclusions of the material as evidence of a need to cross-examination by the court in identification system of medical mistakes. Again, Through the foreign Medical Fault Determination Rules, pointing out the deficiencies of the rules of medical mistakes identification and mechanisms, in which medical fault determination Rules of operability is not strong, the current identification system and medical record keeping system is imperfect, the most prominent.Part III demonstrates the proof of medical fault. Through the "Tort Liability Act," The analysis pointed out that the proof of our medical fault There are two main scenarios: suffering from side to prove and specific circumstances of the medical side to prove. "Tort," significantly narrow the scope of the provisions on the transfer of burden of proof .,judicial practice, it is easy to occur Mechanical application of reverse burden of proof , it is not conducive to protecting the rights of affected parties. At the same time, in view of balancing the interests of both doctors and patients, the medical side of the defense were also discussed.Part IV demonstrates perfection on the system of our medical fault identification and proof system. Although the "Tort Liability Act," The attribution of medical tort principles and exemptions have been clearly defined, but there is still deficiency, the Judicial interpretation and implementation details related need to be introduced and improved. Given China's current relevant law is comprehensive, presenting the following four aspects should be improved: First, to develop a comprehensive medical law, the system provides medical side of the duty of care; second, through unifying identification categories, clearing the standard of compensation to improve the mechanism of medical mistakes Identification ; third is to improve the storage of medical records,To change the medical records from the medical side of production and keeping the status quo unilaterally; Fourth is a reasonable allocation of the burden of proof for different types of cases, the integrated use of "facts speak for themselves," and reduction of the burden of proof standards to balance the rotation of both the burden of proof. Through these measures to establish a uniform standard for medical fault scope and identification ,to achieve a balance of interests between doctors and patients and to provide an institutional guarantee.