On Medical Malpractice And Liability For Medical Damages

This paper focuses on medical acts and liability for medical damages, and also discusses the deficiencies of Tort Law. It consists of four parts. The former three chapters analyze the related theories like constitutive requirements of medical acts, liability and compensation liability for medical damages, burden of proof and the distribution of burden of proof, and also make legislative proposals for the imputation principles and distribution of burden of proof. Considering the spirit of the legislation and related theories on the basis of the current Tort Law, Chapter Four analyzes the shortages of the current law and brings forward individual opinions and legislative proposals, for the purpose of protecting the legitimate rights and interests of both doctors and patients, and contributing to the improvement of our legal system and the development of our country's medical and health undertakings.Chapter One studies the concept of medical acts and sums up the external characteristics of subject compatibility, the caution and risk of behavior, the relativity, harm, self-independence,cooperatives, systematicness of the technical standard, and classifies medical acts from different angles. The paper also gives the concept of medical damages, illustrates the basic features and types of liability for medical damages, and analyzes the relationship between medical acts and liability for medical damages.Chapter Two analyzes the constitutive requirements of compensation liability for medical damages, that is, the fact of medical damages, illegal medical acts, and medical malpractice. The paper brings forward the concept of medical damages and its classification, analyzes illegal medical acts and corresponding punishments, and medical malpractice (mainly are caused by medical faults) and factors that should be considered in measuring. According to Section 54 of Tort Law, if injuries occur during medical diagnosis or treatment and the medical institution and its medical workers proved to be wrong, the responsibilities lies on the medical institution. This eliminates the causal connections between medical acts and damages. Chapter Three analyzes burden of proof and its distribution, illustrates the concept and its features of burden of proof, and also points out the meanings and principles of it. The paper summarizes the principle that "the proof lies upon him who affirms", onus proof of conversion, the allocation of burden of proof by judges, judges'right of discretion to onus proof. After analyzing the concept and different types of imputation principles, the thesis points out the corresponding principles of different medical damages according to Tort Law. The last part of the thesis gives some legislative suggestions on the imputation principles and distribution of burden of proof.Chapter Four proposes some other pieces of legislation suggestions for Tort Law, including optimizing and adjusting the structure, supplementing "the liability for overtreatment" and its judicial interpretations, supplementing judicial interpretations of "excuse for non-responsibility", improving the double-track system in medical appraisal and building medical responsibility insurance system as soon as possible.