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Medical Tort Liability Study

Posted on:2008-07-15Degree:MasterType:Thesis
Country:ChinaCandidate:L H WangFull Text:PDF
GTID:2206360215461243Subject:Law
Abstract/Summary:PDF Full Text Request
In view of the fact that the current medical dispute case increases year by year, our country has appeared a series of judicial interpretation one after another trying to provide the corresponding legal basis for the medical dispute case. But, because judicial interpretation mentioned above has mixed some conceptions about the medical dispute, and has the contradictions and the conflicts between them, as well as the inherent flaws in the system of "the incident of malpractice appraisal" , "the judicial medicine appraisal" and "the double track coexists" in our country, thus in legal science and judicial practice, they have not yet achieved the unified understanding on connotation and extension of the medical right infringement responsibility. This affects the judgement of the medical dispute case. Under this background, conducting the research to the medical right infringement responsibility has the significant importance in practice. This essay mainly carries on the detailed elaboration to the medical right infringement responsibility in five parts , of which the second part, third part and the fifth part are the core content.The first part theoretically carries on the discussion to the medical right infringement responsibility. First, the essay, through the comparison method, distinguishes the medical right infringement responsibility and the medical service contract dispute and the incident of malpractice, thus this essay has a preliminary understanding to the medical right infringement responsibility dispute. Second, the medical right infringement responsibility has its own character, and it must occur in the medical service process and have direct or indirect causal relation with medical establishment's medical behavior; non-constitution of the malpractice incident, including non-constitution of the malpractic incident after the appraisal, or although constituting the malpractice incident, yet the parties to be concerned have not mentioned the malpractice incident and reach the agreement according to medical right infringement responsibility, or although either party puts forward the appraisal of malpractice incident, yet the situation does not conform to the appraisal of the malpractice incident and is unable to appraise.The second part of mainly elaborates the responsibility principles of medical service right infringement responsibility. First, by comparison with the law and the judicial precedent of the common law countries, such as Japanese, German, Britain and the US, the author believes that the medical right infringement responsibility in China shall be applied for the constructive tort principle. Next, through accurate elaboration on present laws and regulations and the judicial interpretation as well as the innerlink between the medical rightinfringement responsibility and the malpractice incident, the author argues that the medical right infringement responsibility is not applied for the tort liability principle. Finally, the essay elaborates the negative influence of the equitable liability principle on the medical right infringement responsibility in the judicial practice, as well as the concrete reason to repel the application.The third part has carried on the elaboration and the analysis on the constitution of the medical right infringement responsibility. First, in view of the current out-dated legislation in China, most of the scholars believe that, "the personnel with illegal practice of medicine" do not constitute the body of the medical right infringement responsibility dispute, thus they advocate non-application of the constructive tort principle when the dispute caused by "illegal practice of medicine" occurs. The author believes that, the personnel with illegal practices of medicine not only contains the personnel who practice in the name of doctor or medical units without national doctor credentials but those who practice outside the working time in the name of themselves or medicial units with national doctor credentials or in the legal medicial units. These illegal practices of medicine are often difficult to distinguish in the real life. It is an urgent problem about how to apply for the laws after the dispute occurs. The author, through the research on the American judicature practice as well as the analysis on the current medical service market, believes that the personnel with illegal practice of medicine shall be deemed as the medicial personnel and applied for the stipulations of burden of rebuttal when they are responsible for the civil liability. Next, the author will thoroughly elaborate the themedical harm scope, the causal relation and the recognition of medical error.The fourth part has a detailed elaboration on the pleading ground of medical service right infringement responsibility. First, the author, through the real cases and in the angle of law theory, has a detailed elaboration on what is called "urgent medical measure" and whether there is liability for the dispute caused by "urgent medical measure". Next, the author, through the relations between the medicine experiment and the experimental treatment and the modern medicine history, elaborates the necessity of the risk-taking as a exemption matter from the angle of law theory. Finally, the author has an elaboration on the exemption grounds, such as the patient's right to know and agree, the illness complication, the disease natural extension and the possible influence on the medicine technology.The fifth part elaborates the burden of responsibility. First, in the foundation of fully considering the hospital side error and paying dual attention to the victim rights, the author has a detailed elaboration on the concrete exploitation conditions of the complete compensation principle, the contributory negligence principle as well as measured benefit principle in the medical right infringement responsibility dispute. Next, in the ordinary circumstances, the hospital shall undertake the substitution responsibility when the medical personnel violate patient's lawful right in the middle of fulfilling the task as a hospital staff. Third, the author has an analysis on the burden of responsibility when the medical personnel intentionally cause the medical right infringement responsibility. The author, through the detailed elaboration in our country existing law and the overseas judicial legal precedent, claims that the medical personnel, according to the principle of "to bear responsibility solely for one's own crime, to oppose implicates" , certainly are responsible for the criminal liability by themselves when they intentionally cause the medical right infringement responsibility dispute. But, when involved the civilcompensation responsibility, the hospital to be concerned shall simultaneously undertake the joint liability. Fourth, the consulation medical establishment and the invitation medical establishment shall undertake the associated compensation responsibility, when the consulation between the medical establishments is the result of the medical right infringement responsibility. Finally, the production unit shall undertake the responsibility with the hospital when the patient is harmed by the unqualified product.
Keywords/Search Tags:The medical dispute, Medical service right infringement responsibility, Tort liability, Illegal practice of medicine
PDF Full Text Request
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