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Study Of Medical Negligence

Posted on:2004-05-25Degree:MasterType:Thesis
Country:ChinaCandidate:Y Y XuFull Text:PDF
GTID:2206360122960539Subject:Law
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In recent years, the litigations for medical malpractice (mala praxis) are increasing and the jurisprudential circle should pay more attention to this phenomenon. The acts of medical treatments have the particularities of ethics, uncertainty and technicality, etc and accordingly, the relations in medical treatment and the affirmation of liability for medical malpractice also have their own particularities. The general rules and principles in tort law are not suitable for the demands of handling the medical disputes and there are much blankness and collision in the legislative framework for the handling the medical disputes in China and the related legal system for evidence is too weak all the times and all these lead to be more difficulties and doubts in fact-affirmation and law-application during the trials on damages compensation for medical malpractice. The concrete standards of the elements in liability for medical malpractice are vague and this brings more difficulties to the trials on damages compensation for medical disputes. The deviation in the trials on damages compensation for medical disputes would not protect the legal rights (jus legitimum) o f the patients, but also influence the normal working order of the h ospitals. Based on the practices in civil trials,separated in 5 parts this dissertation studied the affirmation of liability for medical malpractice and tried to conclude comparatively scientific concrete standards for the affirmation of liability for medical malpractice.In part l,the concurrence of tort liability and breach liability has reached the common acknowledgement in the laws of every country and the liability of the damages compensation for the medical malpractice is also included. And the constitutive requirements between the breach liability for the damages for the medical malpractice and the tort liability for the damage for the medical malpractice have no substantive difference. In this dissertation, it is thought that medical malpractice is not only the mental conditions and behavior conditions, which should be condemned, but also the contravention to the duties of care on the doers. As the constitutive requirement in traditional tort theory, faults and illegality fall into the same concept. So this dissertation adopted the theory of Three-Elements-medical malpractice, medical damage and causality and then extended the discussion to the affirmation and compensation for medical malpractice on the basis of the judgment standards of these three constitutive requirements.In part 2,the discussion on the affirmation of medical malpractice was processed from both sides of positive and negative. From the positive side, the judgment standard for medical malpractice should take the objective standard of the best custodian, and the judgment standard of the best custodian would be by medical level and the emphases and difficulties in the affirmation of medical malpractice is to grasp the medical level. And there are no uniform standards about the medical level and as the consideration of medical level, we should examine the factors of technicality, emergency and regionality and adopt right judgment measures: judgment through general knowledge, judgment under medical rules, judgment by scientific experiments and judgment according to medical expert testimony, etc. From the negative side, there is to be the research on the negative reasons to medical malpractice and whatever satisfied the negative reasons would not be the medical malpractice-permissible danger, act of rescue, self-supporting act, exercise of rights,promise by the patients and comparative faults, etc. Furthermore, this dissertation emphasized the discussion on the problem of the conflict of rights and proposed to exercise the policy of right-priority to solve the problem of the conflict of rights.In part 3,as the affirmation of the damage caused by medical malpractice, this dissertation concluded the definition of medical damages-personal injury and death, property damages, moral damages and damages on...
Keywords/Search Tags:liability for medical malpractice, medical malpractice, medical damage, causality, damage compensation
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