| In recent years, with the continuously enhance public awareness of the rule of law and self-protectionawareness and continuous improvement of the level of medical services requirements, patient conflictsoccur frequently, the incidence of doctor-patient disputes has continued to improve. Speaking from a legalperspective, the understanding of the law experts on many problems in the doctor-patient relationship is notaccurate, at the same time, China’s legal system to regulate the doctor-patient relationship is not perfect.The doctor-patient relationship to define what rights and obligations to resolve patient disputes and the finaldecision on the medical dispute the applicable law, the responsibility of the way as well as medical harm.Based on the related theory of law, medicine, based on modern western developed countries to themedical service theory, practice as the basis. From the angle of combination of theory and practice, thecomparative analysis, the standard analysis and research method of law, to medical treatment servicecontract of related problems made special, system and in-depth research.The doctor-patient relationship, refers to the specific rights and obligations of both doctors andpatients in the medical side of medical treatment behavior. Under the planning economic system too muchgovernment intervention, the doctor-patient relationship was defined as administrative relationship, it canbe understood, but today, the doctor-patient relationship should be defined as the civil contractualrelationship, civil rights and obligations between equal entities.The doctor-patient relationship belongs to civil contractual relationship, naturally, both doctors andpatients exist medical service contract. Medical service contract adjusts the rights and obligations betweendoctors and patients in the medical process of a variety of clinical services. Medical service contractadjustment category includes not only the cure of patients with disease diagnosis and treatment, includingother property services, such as cosmetic plastic, teeth repair, physical examination and so on. Medicalservice contract with our country "contract law" clearly in the list of the contract, leasing contract, businesscontract, commission contract, donation contract and other than the general contract, it is not absoluteproperty contract, still contains a lot of personal nature, therefore, the medical service contract has itsparticularity: mandatory contracting nature, high risk, ability of the asymmetric information, the content ofthe contract and the relative uncertainty results, both morality and legality, etc. Through the comparative analysis conducted in-depth study of the legal nature of the medical service contract, the medical servicecontract is not attributable to the law of contract provisions of any class famous contract, according to thecharacteristics of medical service contract, it will be provided in the contract as a separate new type offamous contract.In the medical service contract formation process, suffering from side to their choice of medicalinstitutions registered, that is, to put forward the medical institutions offer, and medical institutionsregistered and to accept a party booking form, that is, a commitment. This is medical service contractconcluded the conventional process. And the special circumstances, such as the need to rescue the nasty,dangerous, critically ill patients, medical institutions should be timely direct to adopt a treatment measures,often is the first to save their patients, and then to fill do medical procedures. Our country’sOccupational Physician Act provides:" for patients with acute, doctors shall take emergency measures tomake a diagnosis and give treatment; shall not refuse to give emergency treatment." The security andurgency of illness does not allow both doctors and patients to conclude contract and then impose relief.This situation is the performance of its behavior completed contract conclusion.The medical affordable health damage liability exists tort liability and responsibility of breach ofcompetition, the victim in the lawsuit requests can choose freely, or according to the infringement of theirpersonal rights to mention an infringement lawsuit, or in violation of medical service contract to mentiondefault lawsuit. The principle of medical liability for damage should adopt comprehensive system, for themedical technology liability in fault liability principle, for the medical ethics liability, suitable forfault-presuming principle, for the medical products liability, it is suitable for no fault liability principle.Medical service contract to be named has positive significance of many aspects, in order to reduce themedical dispute, better safeguard the legal rights and interests of both doctors and patients, we need toname medical service contract. Try to add into the bylaws of Contract Law a chapter about medical servicecontract, in order to display the guiding beliefs of Civil Law, regulate in detail the rights and duties of bothsides of the hospital and the patient, and then specify the liability for breach of contract. |
