On The Trial Of Medical Malpractice Cases

This article analyses medical disputes from the perspective of medical tort cases and the trial .The common medical disputes can be divided to the medical error and medical incidents and so on. Elements of medical tort include four areas as follow: medical malpractice fact, the fault of the hospital administration, the illegal of the medical behavior and the causal linking between the medical behavior and the damage results. The Judge should distinguish the rights and the obligations between doctors and patients in the adjudication of cases, in order to finally decide which side should bear the legal responsibility. China's medical tort liability is the principle of presumption of fault liability, which is the special form of the fault liability. The hospital is presumed to have been at fault, therefore, he should put proof to prove he is innocent, so as to reduce or remove the responsibility of the victim. That is to say, the judge firstly makes a presumption that the hospital is at fault and there is a causal linking between medical behavior and the harm, then, the hospital put proof to deny the above presumption. This system accords with the current standards and the development of China's health care. Currently the identification of the medical malpractice cases can be divided to the identification of medical incidents and justice identification of medical mistakes. This dual identification system brings big drawbacks for the practice of the trial, because it lacks the workability and manageability. In the trial practice, medical compensation standards use a dualism, specifically, the medical incidents disputes apply "Malpractice Bill," meanwhile, other medical disputes caused by non-medical incidents reasons apply"Civil Law', and other general civil law. However, such dual compensation standards easily create compensation imbalance. In order to compensate for the gaps of legislation, we should rationally determine the degree of the hospital fault, flexibly use methods such as giving the victim compensation money for spirit pain and suffering in medical practice. The author proposes that the compensation standards, identification and the contents of identification should be unified in the future legislation. Apart from these measures, China also needs to establish mandatory medical insurance system as soon as possible to eliminate the medical risk, and then everyone can go to hospital when it is sick.