Font Size: a A A

On The Civil Liabilities For Medical Malpractice

Posted on:2011-07-25Degree:MasterType:Thesis
Country:ChinaCandidate:K P WangFull Text:PDF
GTID:2166360308970779Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Maslow's Hierarchy of Needs devides human's needs into five categories, which reflects the development of human's needs from the lower to the higher. And In the context of doctor-patient relationship, people to concern of their own health is the natural extension of our country's economic strength continue to strengthen and the people's quality of life to optimize. But economic development also brings a series of complex and diverse social effects, like in-depth medical research, enhanced awareness of the public right, pecuniary interest. Physician-patient relationship is sufferring unprecedented challenges, and medical malpractice increases gradually. Therefore, to solute medical disputes in reason has become a social problem.The thesis, passing to research the meaning of medical malpractice, nature of physician-patient legal relationship and medical malpractice's civil liability, elements, responsibility principle, burden of proof, application of the law and compensate, and learning from foreign legislative experience, submits perfect suggestions about legislation and judicature.The first chapter is about overview of medical malpractice's civil liability. First, explain the meaning of medical malpractice from the medical institutions and medical behavior, and focused on discussing the problems that whether pharmaceutical retail enterprise is medical institutions and the legality of medical practice. Then analyse the nature of physician-patient legal relationship and medical malpractice's civil liability.The second chapter is about essential elements of medical malpractice's civil liability, including elements of the breach of contract and infringement liability. Violation behavior, damage fact and causality constitute breach liability. But in exceptional circumstances, damage fact is not the absolute element. Apart from these, infringement liability also includes error. At the same time, this chapter submits that loss of access to treatment is consequences of infringement by comparatively studying missed opportunity theory home and abroad. So in that case, victims have right to ask for compensation.The third chapter is about responsibility principle and allocation of the burden of proof. First, describe binary system of civil liability principle including fault liability and no-fault liability, China's current practice of medical civil liability legislation options and the development trend of no-fault liability. Then combining our medical malpractice's the reverse burden of proof principle and theory of distribution of foreign-related burden of proof, demonstrate the principle of pluralism medical burden of proof.The fourth chapter is about several related issues on handling of medical civil liability in practice, such as application of the law and compensation between medical institutions and physician. "Civil Law" and relevant judicial interpretation should be applicable directly in medical disputes, but when the "Tort Law" is working on, it will be applicable directly with "Civil Law" and relevant judicial interpretation coordinately,and only if provisions of the Civil were not exhaustive or provided, Medical Malpractice Regulation will be work on.
Keywords/Search Tags:Medical Malpractice, Essential Element, Responsibility Principle, Burden of Proof, Application of the Law
PDF Full Text Request
Related items