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An Study On Medical Negligence Determination

Posted on:2013-09-09Degree:MasterType:Thesis
Country:ChinaCandidate:X JiangFull Text:PDF
GTID:2246330374974393Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Because of the increasing tension of the current doctor-patient relationship,people pay close attention to medical tort (the medical tort cases are paid closeattention to in the field of law, both in theoretical and empirical terms). Thedetermination of the medical negligence is the critical, while complicated, question inthose cases. The Article57of The Tort Law of the People’s Republic of China (TortLaw) states that where any medical staff member fails to fulfill the obligations ofdiagnosis and treatment up to the standard at the time of the diagnosis and treatmentand causes any harm to a patient, the medical institution shall assume thecompensatory liability. By that, tort law adopted medical standards in determiningwhether there are negligence deeds in the diagnosis and treatment activities. However,the judicial precedents in shanghai are lack of unified standards to define "medicalnegligence", even after the enacting of "tort law". The serious consequences of theabsence of unified standards are not only that the justice unity will be broke, but alsothat the contradiction between the doctors and the patients will be sharpened. In thispaper, the methodologies of case study and comparative law research are used, aimingto clarify the solution to the standard making problems regarding the determination ofthe medical negligence.The first chapter is divided into two parts. The first part gives an accuratedefinition of medical practices. Medical practices are categorized according to thecharacteristics of different types of duty of care. And only those that fit the following two criteria are defined as medical practices: a) the practice is the behavior carried outby the specific subject against the specific object, b) the practice involves the use ofprofessional medical knowledge for judgment and the behavior of treatment and care.Hence, the paper focuses on examining the diagnosis and treatment on the technicallevel. Then the second part investigates the meaning and the criteria of malpracticeand probes into the rationality of the current evaluation standards, which combineboth subjective and objective principles.Applying the methodology of the comparative law study, the second chapterevalutes the doctrines and the judicial practices of the medical tort cases in Britain,the United States, South Korea, Germany and Japan, and ultimately, to sum up andsuggest the feasible criteria for assessing medical standard for China.The third chapter tries to specify the criteria for assessing medical standard andproposes to make it a written regulation in the literatures and guidelines, and furtherto make it a law. Meanwhile, two elements for amendments are considered–the levelof emergency and the particularity of the patient’s disease stage. Moreover, accordingto the different levels of predictability, the technical medical practice is divided intotwo categories–diagnosis and treatment, thus to apply to varied subjective principles.The last part is to specify the standard regarding violating explanation liabilities.
Keywords/Search Tags:The Judging Criteria of Medical Negligence, Combination of Subjective and Objective Standard, MedicalStandard
PDF Full Text Request
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