Medical Damages Application Of The Law

At present, the application of law for the compensation of medical damage in the people's courts is inconsistent, the similar cases due to apply different laws and regulations so as to emerge the judicative results in which the differences of the compensation amounts are very large. The existence of such a phenomenon affects the harmonious development of the relation between hospital and patients, which become a disadvantageous factor that baffles the proper settlement of medical disputes. Therefore, the author discusses it as a subject. According to the way of thought in which the question is to be put forward, analyzed and settled, this thesis is divided into three parts as follows:Part one: bringing forward the question of the application of law for the compensation of medical damage. Firstly, the thesis summarizes the typical cases so as to reveal the existence of the phenomenon that the application of law for the compensation of medical damage is inconsistent; secondly, the thesis enumerates such a phenomenon and states that many provincial courts all adopt certain measures to alleviate and eliminate the phenomenon, thus explains the universality of the phenomenon and adequate emphasis shall be necessary given to it; finally, the thesis states the harms brought by the inconsistence of the application of law for the compensation disputes of medical damage, namely, the increase of medical trouble phenomenon in the medical activities, the reduction of authority of law and the waste of legal resources.Part two: analyzing the phenomenon of the inconsistence of the application of law for the compensation of medical damage. Firstly, the thesis analyzes the causes of the inconsistence of the application of law for the compensation of medical damage. At present, due to the compensation of medical damage adopts the principle of "dualistic system" to deal with the medical damage, therefore, which cause of case will be brought when the patient bring a suit will decide the application of the General Principles of the Civil Law or the Regulation of Medical Malpractice Settlement to deal with cases, in addition, due to the difference of the compensation standard between the Regulation of Medical Malpractice Settlement and the Interpretation for the Application of Law of the Supreme People's Court on the Adjudication of the compensation of Personal Damage Case is too large, which leads to a lot of actions of lawsuit speculation that waver the public's confidence to law and prick up the inconsistence of the application of law for the compensation of medical damage; secondly, the thesis enumerates the opinions of the academe to such a phenomenon and briefly analyzes these opinions so as to enucleate the author's opinion and indicates that, as far as the existing legal system goes, the General Principles of the Civil Law and its relevant judicial interpretations shall be applied in priority in the compensation disputes of medical damage.Part Three: unifying the proposals of the application of law for the compensation of the medical damage, this part is discussed mainly from two aspects, on the one hand, on the basis of the existing legal system, if we want to eliminate the phenomenon of the inconsistence of the application of law, firstly, we should re-orient the Regulation of Medical Malpractice Settlement and appropriately reduce the scope of effectiveness and make it liberate from the civil juristic relation; secondly, we should transform the existing "dual-track system" into the "one-track system", and its main approach is four unifications, namely, the unification of character, the unification of the existing application of law, the unification of appraisal and the unification of compensation standard. On the other hand, putting forward the proposal of formulating a new law against the compensation disputes of medical damage—the compensation law of medical damage, and putting forward several opinions for the formulation of the law, namely, the abolishment of the term of medical malpractice and the introduction of the principle of compensation.