Medical Tort Law Applicable To The Problem And Recommendations

In the period of social transformation in China, different kinds of new problems appear in the area of physician-patient relationship. The number of medical tort cases continues rising while the application of law becomes a more and more important problem in judicial practice. This paper studies historical development of law application in the field of medical tort, summarizes previous academic achievements, investigates the causes of problems appeared in the law application field of medical tort in judicial practice and finally proposes solutions. This paper contains four parts:The first chapter is an introduction. This chapter describes the specificity of law application in medical tort. Due to the lack of separated legislation in this field, applicable laws exist in different laws, administrative laws, administrative regulations, judicial interpretations fragmentally. At present, there is no perfect or uniform legal protection system to resolve physician-patient disputes, such a situation results in lots of problems in judicial practice. This paper brings forward these problems and introduces the research logic and methods.The second chapter talks about the historical development of law application in the field of medical tort in China. The history of legislation and judicial interpretation in this field can be divided into three phases. The first phase is from July 29th,1987, when the measure on the handling of medical accident is implemented. The second phase is from September lth,2002, when the regulation on the handling of medical accident is implemented. The third phase is from January 16th 2003, when the Supreme Court of the People's Republic of China enacts an important notice about the regulation on the handling of medical accident. The coming forth phase is from July 1st,2010, when the Tort Liability Law is implemented. There are so many law application problems not only about the time but also about the interpretation. This paper analyses and studies medical tort in the three phases.The third chapter talks about the main problems about law application in medical tort cases. The disputes of law application in medical tort cases lasts for a long time. In recent years, the problems of law application in medical tort cases becomes a hotspot in legal and medical field, especially in judicial practice. Theoretically, the law application of medical tort is called dualism, while academic ideas about the topic are so different actually. this paper makes a comparative analysis towards different academic ideas in this field, and proposes the opinion that the medical tort law application must be centralized. This paper bases on the present judicial practice, analyzing the main problems of the law application of medical tort on The following aspects:the concept of the medical malpractice, the scope of damages, the foundation of evidence, the standard of composition and the judgment of fault.The forth chapter present relevant proposal to solve the problems in the field of the medical tort law application.This paper proposes that there must be a special legislation based on the frame of, then establish perfect corresponding law system and legal institutions to solve the problems above. The specific legal proposals are on following aspects:the concept of the medical malpractice, the foundation of evidence, the standard of composition, the judgment of fault and the perfection of authentication system.