On The Fault Of Medical Damage Compensation In The Case

Along with the implement of the Rule of the Treatment for Incident of Malpractice, all kinds of medical disputes gradually become the hotspot and the difficult question in the trial. In the final analysis, the medical service damage compensate dispute is caused by the wrong medical behavior which lead to damage to person. It belongs to the category of the civil legal regulation. In the civil right infringement theory, fault taken as one of the important constructive conditions exists two kind of shapes, namely intent and error. The concept of fault in the evolutionary process has two major points, one is subjective theory, the other is objective theory. Speaking of its essence, fault belongs to the subjective psychological states of the doer, but the standard for review is objective. In medical service damage compensate theory, there are different viewpoints in the recognition of fault (accident? fault? error?) in the constructive conditions of liability. The medical mistake must include intention and the medical error. Because the medical harm disputes are mainly caused from the violation to the attention duty, the study scope of this article will be limited to the responsibility of the medical establishment and its staff. In the lawsuit, by who and use which procedure to recognize the medicine prescription mistake, the judicial practice operation is not quite unified. The medical harm dispute case should be divided into the medical compensate dispute caused by malpractice and other medical compensation disputes which are not caused by malpractice. The former should be suitable to apply the mistake estimation principle, so the responsibility to present evidence should be converted. The latter then should apply the general right infringement principle or contract breaking theory. In the medical harm...