Medical Damage Liability Study

Medical damage is a kind of civil responsibility; meanwhile it is frequently the main in civil trails. In virtue of the relatively delay in the legislation of medical damage compensation in China, quantities of new problems have been generated in judicatory practices. This article commences from the definition of medical damage then it makes a specific analysis an such issues as constitute liability, and way to ascertain the medical damage compensation responsibility, in order that it can be deemed as a reference for trials. This article includes four parts besides the introduction.The first part is definition of medical damage. In this part, through research on the theories on civil damage and facts of damage and comparison of definition of medical accidents related in different developed countries, a definition of medical damage of author's own will be given, namely that medical damage is unprofitable facts occurring to the patients which is aroused from some medical behaviors during the medical treatment process, it is only one element of the constitution of liability of medical tort, which will not necessarily undertake the liability of medical damage.The second part first discusses the definition, meaning, system and other related theories of the principle of liability undertaken. Then it discusses the legal regulation of burden of proof in our country. It puts forward that inversion of the burden of proof applies in medical tort suit. And then a conclusion will be made as that principle of burden liability of the medical tort suit should be inverse, meanwhile a statement of negation of liability.The third part is the constitution of the medical damage. This part discusses the theory of duplication of civil liability, stating the duplication of liability of breach contract and tort of medical damage. This article mainly concerns of requisites to constitute liability for tort, and specifically analyzes four elements including illegal at medical damage, fault and causation. It further points out that the abstract standard for medical malpractice which is the theory of "medical level". On the issue of causation, there are some elements such as medical causes, accident-participating and particular physique of the minorities to do judgment and affirmation.The forth part is the ascertainment of medical damage compensation responsibility. Medical damage compensation is a kind of civil liability that a medical institution which it breaches the contract or tort of medical damage, thus to make the patients recover from such breach or harm act. In analyzing the legal relationship related to a medical damage, the conversance of person having and person owing liability should be paid special attentions to. This article will go on analyzing the unreasonableness of the "dualism" phenomenon that occurs in the application of law present legislation on medical damages, and the "two-trace" system in medical identification. Then some personal views about the way to pay for the damages and the limitation of cases related with medical damage are provided.