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Medical Negligence Standards

Posted on:2004-10-19Degree:MasterType:Thesis
Country:ChinaCandidate:Q L BaiFull Text:PDF
GTID:2206360095456328Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Attributed to its specialty and complexity, medical malpractice is hard to be classified either as a tort liability or in a contractual liability, notwithstanding many years' discussion among jurists. In tact, many commentators are seeking to detach medical malpractice as separate legal regime as well. This disparity is also shown in several countries' current legislation, to which I will explain in the following discourse.Some preliminary research has also been done in our country in recent years, which unfortunately cannot resolve rapidly increase litigations arising from medical malpractice. In essence, this problem is ascribed to lack of communication between physicians and jurists, in light of which, the main target of this article is to rebuilt the standard in determining medical malpractice, through which we would reasonably expect to limit the range and the degree of the physicians' liability. Subsequently, the risk of physician vocation would be reduced, and the medical science would regain its health developmentThe specialty of Medical Malpractice in civil responsibility, commentators cannot agree on the theory of "concurrence" or "non- concurrence" doctrine in terms of choice between Tort liabilities and Contractual liabilities. In practice, Japanese court sustains that the "tail to perform due contractual obligations" should be the standard in determining liability, while most of the other countries follow the general causation principle in tort By contrast, this article will show that, since both of them apply "duty of care" as the standard, in effect the burden of producing evidence is of little difference in either case. To ascertain the reasonable skill, the property and the degree of "duty of care", however, should be tenet of research.The specialty of the standard in determining Medical Malpractice, medical profession is strongly correlated with expertise, for which different medical acts should only be weighed only upon regulations made by expert group or medical society. Such regulation can be specified in accordance with situations whether a physician has shown reasonable degree of learning, skill, and experience which ordinarily is possessed by others of the profession, namely, the average standard of profession. On the other hand, there are distinctions among those standards followed by specialists, general physicians, respective experts and ordinary individuals. The one who assert himself as a specialist or respective experts in the treatment must be required to bring to his patients the expected degree of skill, which a general specialist or expert assumes to exercise. Therefore, the current achievement in Tort is that the adjudication relies heavily on individual and concrete relationship.The general rule in conformity with Practice Guidelines, Custom or Usage, it is themost important argument of this note, which is divided into six parts. Practice Guidelines,Custom or Usage may be proper tor the consideration of jury in determining whether or not sufficient care had been exercised, which is decided by art of science and market function. In recent years, "duty of care" has been decided favor of the objectivity and standardization. Further, "high duty of care" standard does not exclude the duty of acting in a higher skill, even the patient did not expect the better and no sign shows the physician has such skill.Then "high duty" can not invoke limitation of liability and would deduce as "Utopian Standard" which is the cause of "defensive medical act". In succession, one prejudication shows us that it is meaningful for determining the tort requirement only when the "fiduciary duty" is interpreted in the general rule. Reviewing on the fact of China, the adoption of general rule is necessary in the light of reducing the litigation cost, balancing the relationship between the physician and the patient and determining the case exactly. In order to emend the irrationalities of the general rule, this article introduces and comments on the clinical practice guidelines and st...
Keywords/Search Tags:Negligence
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