The Legal Issues About Physician Specialist Responsibility In China

Accompanying by the deepgoing of social division of labour , Physician Specialist Responsibility has been integrated into the research agenda and attracts more and more attention in law circle due to an increasing tensity of doctor-patient relationship in China.Based on the analysis of research status both at home and abroad, four questions will been discussed : how to give an appropriate qualitation to Physician Specialist Responsibility? the quality of Physician Specialist Responsibility is default or tort, or copetition of them ? which issues should be noted in affirmation of responsibilities? which schema should be used in construction of the system of professional responsibility? Apart from the introduction and conclusion , four fractions will employed to discuss these questions respectively in this article.The first fraction is the critique of definition about Physician Specialist Responsibility. According to the research status both at home and abroad, we suggest that it is difficult to get a definite definition to the expert and its character can be summarize as expertness, qualification, dependability, social serviceability and vocation autorhythmicity. We propose that the definition of Physician Specialist Responsibility is the tort liability should be assumed by some personnel or organization, who provide specialized skill and knowledge service , when clientele or the third party is injured due to negligence or delinquency in practising. We also summarized the qualification confirmation, medical behavior characteristics and extract several characteres of professional responsibility, which lay a root for the following discussion.The second fraction is the analysis of quality about Physician Specialist Responsibility. Based on the investigation and anlehnung on legislation of the two big legal systems, we suggest that the nature of Expert Liability should be different according to different responsibility objects. For clientele (patient), professional responsibility possess the character of both infringement liability and default responsibility and the clientele should have right for choose the cause of action freely. We also suggested that the copetition have right of claims. For the third party, professional responsibility belongs to infringement liability. To protect the doctors' interests and encourage the development of medical services, some standard to restricte the third party's scope of power should be proposed.The third fraction is the affirmation of professional responsibilities. In this part, the principle of imputation, burden of production, constitutive requirements and affirmative defense of professional responsibilities were discussed. Here, the principle of imputation is considered as fault liability principle whether it is due to default or tort. But it is the doctrine of presumption obey the fault liability. It also means that it use presumption of fault in causal relationship identification. Burden of proof in reverse was used in burden of production based on oresumption of Fault, which means the doctors shoulder the burden of production when fault and the causal relationship between medical practice and dam-aging effects is not exist. The constitutive requirements of professional responsibilities include subject of liabilities, violation, dam-aging effects, causal relationship and subjective fault. The doctors can take medical accident, complication, noncompliance of the patient and their family, and so on as affirmative defense.The fourth fraction is some suggestions about the construction of professional responsibility system. Based on the analysis of existed legislation about doctor-patient relationship in China and current research situation about professional responsibilities from different scholars, we suggested that the small-scale professional responsibility system is appropriate to used in the fraction of special right infringement in tort law to formulate the professional responsibility. A《medical-malpractice》, which formulate the professional responsibility in detail, should be enact to Fill up the deficiency of tort Law. I also suggest that insurance system about professional responsibility should be established to decentralize the doctors'risk and encourage the development of medical services.