The Doctor-patient Relationship Application Of The Law

Medical activities are basic in modern society, and the relationship between medical establishment and sick men becomes universal and important. However, in recent years, contradictions and disputes between them are increasingly intensified, which has reached an unprecedented level. So, the public and scholars are urged to use legal measures to solve these issues in this situation. But there is a lot of controversy about how to solve it according to which law. In this paper, the author tries to analyze the location of medical establishment-sick men relationship to clear their rights and obligations, which can make solid theoretical foundation to legally regulate the relationship, and discuss on the law application and the legislative perfection.This paper consists of four parts:The first part introduces the concept, characteristics, type and history of medical establishment-sick men relationship. Considering the main contents of this paper, this relationship is defined that it is a right-obligation relationship between medical establishment and sick men, sterns from medical activities. This relationship has its characteristics caused by its complexity, high-risk, and high-tech. The type and history are separately static, dynamic descriptions of this relationship, and they put forward to some methods and experiences to regulate this relationship legally.The second part, as the most important content, analyzes the location of legal relationship between medical establishment and sick men. Although there are different viewpoints about its location in China and this relationship is regulated by a specific law as an independent legal relationship aboard, the author makes a conclusion that it is a legal relationship between consumers and business operators. This conclusion is made by deliberations and multi-considerations of our national conditions. One hand, this relationship has dual attributes of consumer-operator legal relationship; on the other hand, this relationship can apply to "Law of the People's Republic of China on the Protection of Consumer Rights and Interests" (hereinafter referred to as Law on the protection of consumer). Meanwhile, the author analyzes this relationship's particularities, which is to introduce the characteristics of medical industry and pave the way for expositing this relationship application of this law.The third part is how to regulate the medical establishment-sick men relationship by Law on the protection of consumer. The author advocates that this relationship can apply to the major provisions of this law. However, because of the particularities of this relationship, if there are legislative reasons for medical establishment to cause sick men's injury or property loss, we shouldn't apply this law to regulate this relationship.The fourth part is about law application and legislative perfection of medical establishment-sick men relationship. Legislatively, in addition to reconciling Law on the protection of consumer with other relevant laws, we should create some provisions of sick men's privacy protection, clear the attribution of liability in medical disputes cases, and determine the limitation period. Judicially, we should utilize judge's discretion for application of inverting the burden of persuasion and choice of medical identifications.