On Medical Malpractice Liability

With the development of the society, the popularization of the science knowledge, and the increase of people's awareness in civil rights, patriarchy mode in traditional medicine has encountered the unprecedented challenge. The relationship between the hospital and the patients has accordingly becomes more tense. These changes make the medical disputes one of the focuses of the society. Regulations of medical malpractice handling, which was issued in 2002, has provided certain instructions for medical malpractice cases, yet there is room for improvement. Based on the definition, constitutive requirements, identification and compensation of the medical malpractice the present paper is to put forward some suggestions for the legislations concerning medical malpractice in China with the help of the experiences of other countries and some cases as well.Chapter one is named medical malpractice and medical malpractice liability. To begin with, the author states the definition of medical malpractice and the nature of the medical malpractice liability. This is followed by the analysis of the constitutive requirements in the medical malpractice. According to the understanding in the fields of medicine and law, medical malpractice refers to the malpractice caused by medical staff's violation against the common practice in medical treatment, which brings injury to human body. The constitutive requirements consist of four parts: firstly, the hospital has done the medical treatment; secondly, there is fault in the medical treatment; thirdly, the injury is caused; lastly, there must be cause-effect relations between the medical malpractice and the injury.Chapter two is the identification of the medical malpractice. It mainly deals with the responsibility of proof-raising and the identification of the medical malpractice. Some relevant laws issued in 2002 by the State Council and the Supreme Court have made great improvement concerning the handling of medical malpractice in China. Meanwhile some problems were brought about. Therefore, based on the introduction of the relevant laws of western countries the author analyzes the deficiency and its causes in China's present legislation and raises some suggestions for the improvement.The last chapter is the liability of the compensation in medical malpractice. It focuses on the party, the liability of the doctor, the substitute liability of the medical institutions and the range of the compensation. Finally it explores the risk dispersion system in medical injury compensation and the author's idea about the relevant laws.