The Medical Tort In The Identification Of The Causal Relationship

The most basic purpose of the law is to realize"corrective justice"better, that is to reassign the results of the social distribution so as to maximize the social justice, including the sound law and the rigor structure. The existence of certain fact and the realization of the compensation obligation provided by the Tort Law must depend on the establishment of certain logical structure.In China, there exists four-element logic system in the Tort Law, and the causality plays an important role as a joint, the testification of which is the premise that the victims obtain the compensation. The testification of causality is the historical testification, that is to rebuild facts by the limited evidences and experience. The limitation of the medical science and technology, multi-causes of pathology and the difference of individual physique make medical science a specialized subject, which is complicate and has many unknown fields. Nevertheless, as the significant element of the medical tort liability, causality is the foundation and premise of the medical tort liability, so as to fairly identify the casual relationship in line with the internal logic of medical science and law in the medical tort case is the core of the trial.But in the practice, there is a tendency to simplify and formalize the review and identification of the causality, excessively counting on it or completely mistrusting and adopting the authentication conclusion.The reasons are as follows: On one hand, it is the characteristic of the medical practice itself. Generally, it's difficult or impossible to identify the causality by medical or judicial authentication; On the other hand, as a result of the lack of the theoretical guidance and the reasoning analysis grounds, judges trying the case can only adapt it as the foundation.According to the requirement of the judicial function on resolving the conflict and the idea on benefiting the development of medical science, the author, by a case, starts with outlining the causality, then analyses three-aspect key points on the causality identification of medical tort and the practice of self-identification of facts for illustrating some views how to identify the causality of medical tort, meanwhile, elaborates two pieces of suggestions on how to improve the link of causality identification ,to achieve the purpose to enrich the theory and guide the practice.The paper is divided into three parts and the total words are about 20,000.The first part, starting with the plight of the identification of the causation of medical tort, does a simple analysis from four aspects. Firstly, it makes assessment of some cases to raise the focus of the legal dispute----the identification of the causation of medical tort. And then it makes necessary introduction on the relevant theories of the causation and its characteristics. Lastly, it makes necessary discussion on the theories of causation in two legal systems and the identification in China to get the conclusion about levels and standards which should be followed in the identification of medical tort causation in author's opinion.The second part, firstly makes a three-step analysis around the points of the causation of medical tort, including the principles that identification should follow, extension of the concept----"cause"and"result"---- in medical tort causation and inside-pattern of causation under kinds of causal effect, with the purpose to clear the basic frame in mind that judges should follow in the identification of the causation of medical tort in judicial practice from various aspects. Secondly, it makes some necessary discussions and thinking about the principle of"self-identification of facts"and the construction of scientific and proper"appraisal", which can achieve the intension of the paper, which is to better realize medical tort identification both in theory and operation.The third part is conclusion, which points out the theoretical basis and operational details that medical tort identification needs.