Study On The Liability For Medical Damage

As a special tort, the behavior of medical damage receives the educational word attention because of the imperfect and not uniform, before the enacting "Right infringement Liability Act", and takes medical trouble relations day by day confrontation and conflict."Right infringement Liability Act" establish the seventh chapter to make a specific provision, in order to alleviate medical trouble relations contradiction and unify the medical damage behavior’s legal provisions and establish legal authority. This article embarks from the medical right infringement liability’s basic theory, by making a comparison of the legal provisions before and after "Right infringement Liability Act", this thesis is composed of four parts with the title of the research on the medical damage, and put forward my own opinions on the new situations of the too big burden of proof and there is the lack of medical malpractice identification system.Chapter one, clarifing the concept of the liability for medical damage. By comparing the analysis of the concept of medical damage and malpractice and medical tort and medical fault and medical dispute, draw the conclusion why "Right infringement Liability Act" determines the liability for medical damage to be the final conception. In order to understand and define the liability for medical damage correctly, I make a necessary expounding about the features and types of the medical damage. The unified conception of the liability for medical damage solved the problem of the double track system of medical damage case, and ended the unreasonable phenomenon of treating the same case with different methods in the judicial practice in recent ten years, provided the actual and legal basis for hearing the medical damage case.Chapter two, elaborate and analyze the current state of the liability for medical damage in our country. The constituent elements of the liability for medical damage include the following three elements:medical fault, result of medical damage, causal relationship. This article illustrates the concept of the medical fault in details, and propose medical fault including intentional and negligent. Regarding the rule of imputation of the iability for medical damage, by making a comparison of the legal provisions before and after "Right infringement Liability Act", analyze the current rule of imputation that includes the principle of fault liability, presumption of fault, liability without fault. Clarifing the application of the "Right infringement Liability Act" by discussing impunity reason of law and impunity reason of provides of the principle. The burden of proof on the issue of the liability for medical damage, elaborate the following four elements:medical violations,the fact of medical damage, causal relationship, medical negligence, and analyze the proof of the causal relationship that related to identifying the facts of the case.Chapter three, finding out the lack of our research of the liability for medical damage with the help of advanced foreign country’s liability for medical damage, and develop our country’s liability for medical damage by learning the experiences of the advanced country."By other’s faults, wise men correct their own", as a country of lower legalization, we also have a wide gap between the advanced country in the legal system. We should learn the advanced country’s experiences to develop our research of liability for medical damage.Chapter four, analyzing the problem in the current medical damage in our country,and thinking of the solvement of these problems. In order to solve the problem of too heavy patient burden of proof, we introduce the principle of easing the patient burden of proof. Clearing the specific operational methods of the identification of the medical damage. Introducing compulsory medical liability insurance to ease the conflict between doctors and patients.