Comparative Study On Sino - US Medical Malpractice Injury Compensation System

The purpose of the thesis is to hope to improve Chinese recovery system on medical malpractice through comparative investigation on that between in the U.S. and China.Part one gives definition and classification of medical malpractice in two countries. In the United Slates, medical malpractice has been formally defined as: "bad, wrong, or injudicious treatment of a patient, professionally and in respect to the particular disease or injury, resulting in injury, unnecessary suffering, or death to the patient, and proceeding from ignorance, carelessness, want of proper professional skill, disregard of established rules or principles, neglect, or a malicious or criminal intent". In China, medical malpractice is defined as medical adverse events which cause patients' death, disability, or functional hindcrence according to regulations dealing with medical malpractice by Health Care Department,Part two discusses who are responsible for medical malpractice, Health care institutions, physicians, nurses, directives and officers, radiologists, pharmacists etc. may be liable for malpractice in the U.S.. In China, health care institutions are liable for medical malpractice.Part three discusses components of medical malpractice liability in two countries. Components of medical malpractice liability in the U.S. include duty to care, breach of duty, injury and causation. In China, they are tortious act, negligence, injury, and causation.Part four discusses the principles of law that may relieve a defendant from liability. They include assumption of the risk, borrowed servant and captain of the ship doctrines, comparative negligence, contributory negligence, good Samaritan laws, intervening cause, statute of limitations in the U.S.. They are similar in China.In America damages can be divided into into three parts: economic damages, non-economic damages and punitive damages. Economic damages means objectively verifiable monetary losses incurred as a result of the provision of, use of, or payment for(or failure to provide, or pay for) health care services or medical products such as past and future medical expenses, loss of past and future earnings, cost of obtaining domestic services, loss of employment, loss due to death, burial costs, and loss of business or employment opportunities. Non-economical damages means damages paid to an individual for pain and suffering, inconvenience, emotional distress, mental anguish, loss of consortium, injury to reputation, humiliation, and other nonpeculiary losses; punitive damages are additional money awards authorized when an injury is caused by gross carelessness or disregard for the safety of others. In China they include economical damages which are similar except that on future income loss and non-economical damages.Part six discusses the burden of proof in two countries. In (he U.S., the party seeking compensation for injuries suffered because of the negligence of another must prove that there actually was such negligence. A "preponderance of the credible evidence" must bepresented in order for a plaintiff to recover. Res ipsa loquitur is the legal doctrine that shifts the burden of proof from the plaintiff (o the defendant. In China, when the party seeking compensation for medical malpractice must provide identification, the burden of proof is on the claimant; when the court requires the defendant to prove that he didn't create medical malpractice, the burden of proof shift from the plaintiff to the defendant.Part seven discusses medical malpractice insurance. There are three medical professional liability classes in the U.S.: individuals; health care institutions; clinics, dispensaries, and infirmaries where there are no regular bed or board facilities, in China, they are health care institutions.