A Study On The Application Of Law In Medical Disputes

Since the eighty’s of the last century, the state has promulgated the "general principles of civil law", "medical accident treatment measures" and "Regulations on handling medical accidents" and "tort liability law" and relevant judicial explanation, has formed a set of handling the medical disputes and the system of laws and regulations, in accordance with the law to solve the medical dispute, has played an important role to maintain the legitimate rights and interests of both doctors and patients. However, these laws and regulations in the nature of the civil liability of medical dispute legal identification, responsibility principle, responsibility and compensation standards and other aspects of the provisions is not clear, not even in conflict. For example, "Regulations on handling medical accidents" Regulations on the medical accident compensation are inconsistent with the existing legal system, the design of technical appraisal for medical accidents being questioned, the credibility of the medical malpractice dispute did not make clear a regulation system defects and the law should be adjusted by the medical civil relations made legislative provisions; the "general principles of civil law liability for medical damage no special provisions of the liability of medical damage and personal injury tort civil liability and civil liability for breach of contract equal; the" tort liability act "to determine the" medical standards at the time of the duty and the standard of fault, did not consider the category, level medical institutions medical personnel qualifications and regional differences and other factors impact on the level of medical treatment, and the identification of medical damage compensation for medical damage is not clearly defined. As a result, the provisions are inconsistent or even conflicting with the relevant laws and administrative regulations coexist in the same period and at the same time, it will cause the medical dispute law "two yuan" situation, which derived from the medical damage identification in the practice of "multiple identification" or "multi track system" and a series of problems. The application of law is not unified and even conflict, in violation of the rule of law principle of fairness, affecting judicial justice, litigation efficiency is reduced, increasing the cost of dealing with medical disputes, the intensification of the contradiction between doctors and patients, is not conducive to social harmony and stability.Because the medical service by the process of medical development, the level of medical technology and the individual difference of patients and other factors, the medical risk always exists, the medical effect is unsatisfactory, it is difficult to avoid medical disputes. Treatment of medical disputes in accordance with the law, is the inevitable requirement of the rule of law, is a necessary way to construct harmonious doctor-patient relationship. Therefore, to improve the legal system of medical disputes, medical disputes applicable law principle, has become a pressing matter of the moment. Through the analysis of medical disputes in the problems of application of law, put forward some suggestions of medical dispute legal system and legal principles: first, in the legal system construction, the proposed modification to the existing laws and regulations under the framework of "Regulations" and the relevant laws in conflict or inconsistent terms specific to "; the level of medical care at the time of the tort liability law" in the "" the standard of fault, fully consider the various factors affecting the medical level, clearly defined the responsibility of medical damage identification and compensation standard making. At the same time, from the maintenance of a unified legal system, enhance the lawsuit efficiency point of view, the proposed integration of civil legislation or in the forthcoming national "Civil Code" clearly stipulates the liability of medical damage defined principles, procedures, methods and contents of the medical damage compensation standards, applicable to the medical damage liability dispute case law made clear, and the unity of personal damage identification method, standard of personal injury identification management, in order to fundamentally solve the medical dispute law "two yuan". Second, in the application of the law, suggestions in accordance with the "legislative law" and the Supreme People’s Court promulgated the provisions of civil case implementation "(2011 Edition) of the relevant provisions of law and the principle of treatment according to the selection principle of practice in medical disputes, choose to apply the relevant laws and regulations. In addition, through the analysis of the nature of civil liability of medical malpractice, and puts forward the principle that the concurrence of tort liability and liability for breach of contract and the two party liability point of view to define the civil liability in medical disputes.