Theory Of Medical Negligence

With the increasing number of medical disputes in recent years, reasonable assurance of medical liability for damage and properly resolving medical disputes are more and more significant to ease the doctor-patient relationship and balance the interests of them. The core element of medical liability for damage is just the medical negligence, therefore, deeply studying the medical negligence is significant.This dissertation is divided into three parts except the introduction. The first part defines the concept and types of medical negligence. Although the essence of negligence is a subjective state of mind, definition of medical negligence should not just from a purely subjective point of view but should focus on the behavior under the domination of the subjective fault. Therefore, the concept of medical negligence is defined as a violation of medical duty of care. Then depending on the type of the duty of care, it is divided into negligence of violating the technical medical duty of care, the ethical medical duty of care and organizational medical obligations. The second part establishes and recognizes standards of medical negligence. Standards of medical negligence are standards that measure whether the medical duty of care is violated. The standards include specific criteria and abstract standard. The former includes relevant laws, regulation and rules, clinics and care norms, internal rules of the medical institutions, medical literatures as well as the special agreement of the parties. The later is the "standard of medical treatment", it means that a doctor’s knowledge, the level of attention, and attitude during medical practice should be in accordance with professional standards that a general doctor in the same case should follow. In the use of the abstract standard, the regional medical factor, the specialized medical factor, the urgency medical factors should be considered. The relation of the two standards is: reference the specific criteria if they exist, otherwise, reference the abstract standard which can make up the insufficient of statutory provisions. The third part designs and demonstrates the rules on allocation of the burden of proof of medical negligence. Because the principle of fault liability is the mainly liability principle of medical liability for damage,"who advocates, who proves "is the principle rule of burden of proof, but easing the burden of proof and burden of proof inversion can be used in some cases in order to balance the litigation status of doctors and patients and achieve substantive fairness. The difference between them is that the former is in the case of applying the general rules of burden of proof, it is the result of discretion of the judge who makes it according to the cases requiring, while the later is to abandon the general rule of burden of proof and implement the inversion of the burden of proof, the specific circumstances are provided by law, so it is the statutory burden of proof inversion.