Medical Damage Liability Study

It is no doubt that in recent yeas the dissension between physician and patient grows up quickly. On the contrast law theory and legal practice about the question are very poor, so we think of it as my graduation paper .This article is composed of the medical treatment contract and medical malpractice, which is divided into totally four parts.The first part of the article tells that what is the medical treatments behavior, on the foundation of that the article describes the character of the medical treatments behavior . so we can draw a conclusion that the medical treatments behavior is professional, complicated, legitimate and commonweal . in the end we can say all the characters are the foundation of the responsibility of Medical Malpractice.The second part of the article tells the medical treatment contract mainly. Firstly it tells the four different theories about the relationship between physician and patient and it affirms that the theory of the medical treatment contract is rational. Secondly the paper describes the three main types of the contract. At different conditions the parties of the contract are different. Thirdly, it focus on the right and obligation of two parties. At the same time we can' t neglect the special clauses in the medical treatment contract. In the end of this part, it states the essence of the medical treatment contract. So it reach a conclusion that the medical treatment contract is unnamed contract.The third part of the article deals with the nature of the duty of medical malpractice. The author thinks that it is the concurrence of tort and breach. In the following, the author compares the duty of medical malpractice and breech. At last, the conclusion is drawn that they are the same in essence. But indifferent occasion, deferent measure will achieve different effect. For this reason, we have tocommit only if the right of choosing freedom is given to the victims, can they be protected thoroughly.The forth part mainly discusses the nature construct elements of the duty of medical malpractice with the duty of medical experts as emphasis. Although there are some differences in construct elements of tort and breach in Civil Law, they are the same in cognizing the duty of medical malpractice. The elements of breach contain three parts: the behavior of breach, the consequence of damage and causal relation. On the contrast the elements of tort include four parts: the behavior of infringement, fault, the consequence of damage and causal relation. But the meaning of the behavior of infringement and fault is the same as the meaning of the behavior of breach in the construction of the duty of medical malpractice. So we can explain the construction of the duty of medical malpractice with the example of tort. In the end the writer discusses the value of the duty of medical malpractice.In this article, the author adopts the methods of comparing and exemplification.