On Medical Malpractice Civil Compensation

This article discusses an important hot topic in the civil law domain—the civil compensation of medical malpractice. In today's society, as a result of the occurrence of medical malpractice, as well as the enhancement of people's consciousness of protecting their rights. There is a rapid rising tendency in medical disputes. More and more medical malpractice resort to the use of law. Compared to "Ways of the Handling of Medical Malpractice" promulgated in 1987, "Regulation on the Handling of Medical Malpractice" in 2002 has a remarkable progress, and plays a positive role to solve the problem of medical malpractice compensation, but its stipulation has much oversight and is too simple. There are many different ideas in its practice. Therefore, we need to analyze the problem of medical malpractice compensation in order to handle the medical malpractice fairly and reasonably, practically protect the legitimate rights and interests of both doctors and patients, promote medicine to develop fast and healthily, serve patients and society better. So, this article takes the civil compensation of medical malpractice in our country as the thesis, aimed at helping improve law related to medical malpractice. This article is divided into three parts—the foreword, the main text and the conclusion. The main text is divided into three parts.The first part is the analysis of elementary theories of medical malpractice. It is divided into two sections. Section One discusses the concept of medical malpractice. In this article, after inspecting the concepts of medical malpractice in foreign countries, comparing the concepts of medical malpractice in "Regulation on the Handling of Medical Malpractice" and "Ways of the Handling of Medical Malpractice", and analyzing concepts related to "medical malpractice", the author thinks that the concept "medical injury" conforms to essence of civil law. Section Two elaborates the foundation of medical malpractice. Beginning with the concept of medical malpractice, on the basis of the character of medical behavior, this section makes analysis of the types of the present relation between doctors and patients. The author thinks that the basic law relation between doctors and patients is still medical contractual relation, in addition, there is non-contractual medical relation. The existence of medical relations is the foundation on which medical malpractice occur.The second part discusses the nature of civil responsibility of medical malpractice. It is divided into three sections. Section one discusses the nature of civil responsibilityof medical malpractice. Separately elaborates that civil responsibility of medical malpractice is a responsibility of breaking a contract, also is right infringement responsibility, and the reason why the two get together. Section Two analyzes the principle of to whom the medical malpractice responsibility goes. First briefly elaborates the concept and types. Analyzes the merit and the flaw of four kinds, next discusses the principle, thinks that principle of presumption of fault applies. Section Three analyzes exhaustively how to identify medical malpractice. First, the author elaborates the formation elements of medical malpractice. Next, analyzes the ground of defence of medical malpractice. The author thinks that under the circumstances of urgent rescuing, medical accident, the non-mistake blood transfusion, force majeure, legitimate human experiment, forcing to treat, or when the medical malpractice are caused by patients, medical institutions do not undertake the compensation responsibility.The third part studies problems related to injury compensation of medical malpractice. It is divided into three sections. Section one is about elementary theories of injury compensation. In this article, after analyzing the concept of injury compensation, proposes that compensation of medical malpractice should be in line with the principle of protecting patient's rights and interests, respecting character of the development, of medicine. When determine the amount of compensation, we should consider the degrees of medical malpractice, the condition of patient's original disease, as well as responsibility degrees of harmful behavior in injury consequence and so on. Section Two is the concrete content of compensation of medical malpractice. First, makes a brief analysis of the property damage compensation, thinks that property compensation of medical malpractice includes not only the compensation of damages received, but also that of the benefits lost. Next, makes a detailed elaboration of the mental injury compensation. On the basis of affirming mental injury in medical malpractice, differentiates the types of mental injury in medical malpractice by different standards, and proposes the compensation principle and the computational method of mental injury. That would be more reasonable and fairer. Section three studies the settlement way of medical malpractice compensation, proposes that in our country we should take lump-sum payment as principle, take regular money payment as exception. In this way we can fully protect the legitimate rights and interests of both doctors and patients.