Research On Institution Of Emergent Medical Treatment

As long as the occurrence of a pregnant’s dying due to a refusal to sign, therelationship between doctors and patients in constant strain recently was thrown ahighlight on in public opinion. Centering on rights and obligations between doctorsand patients, namely on the question that is it a right or an obligation of medicalinstitution to carry out emergent medical treatment, there were amounts of disputes inPractitioners and Theorists that appears never to reach an agreement. A few years later,the court entered a judgement of imposing no compensation duty on account of nocausality between medical behaviors and damage, which cannot be considered andirect answer.Medical Institutions Governing Regulations issued by State Council in1994initiated to prescribe Emergent Medical Treatment in China, and the new TortLiability Law specifies Institutions of Emergent Medical Treatment from aspects ofapplicable conditions, legal consequence, and excuse for nonresponsibility, etc,becoming main legal regulations for our judiciary mechanism on medical issues inrelation to emergent medical treatment then. Accordingly, on the subject of EmergentMedical Treatment regulations, there are two legislating methods of Decision Rightsof Emergent Medical Treatment and Emergent Medical Cure Duty:One is to regard exercising Emergent Medical Treatment as MedicalInstitutions’ rights in certain situations, and that is to say that Decision Rights ofEmergent Medical Treatment belong to Medical Institutions. On the patient’s criticalcondition and no consent of his/hers or his/her relations, medical insititution has theright to decide to adopt emergent medical treatment with approval of head ofmedical insititution. Rationality in this way is that: Decision Rights of EmergentMedical Treatment is premised on validity of medical service contract, and ought tobe a Right in Personam in classification of Civil Rights that can only be applied topatients; the outcome of implement of emergent medical measures is directly tochange content of medical service contract, rights and obligations of both, withoutconsent of the patient party. For example restricting the patient’s exercising Right of Informed Consent, exempting the hospital’s Duty of Explanation and Information,respectively undertake the responsibility of the application of this measures. This isits character of Right of Formation.The other argues that it is the hospital’s obligation to take emergent medicalmeasures in statutory conditions. Our legislation system stipulates its ReasonableDiagnosis Duty including Emergent Medical Cure Duty, so it shouldn’t refuse togive urgent medical care to patients when necessary. Or, the medical institutions willlose its excuse for nonresponsibility and reimburse the patients.The author holds that the essence of practicing Emergent Medical Treatment isMedical Institutions’ obligation, due to the fact that: whether right or obligation itfixes is reasonable in legislation skills and reality practice, which is not acceptable instatute law practice being focus on legal logic of Civil Law System. Furthermore, theright concept could make obstacles on behaviors on parties and damage to patients.As a result, it is essential to modify articles in Tort Liability Law and bring EmergentMedical Treatment back to its obligation nature. Only by this can it achievedharmony in inner logic of legal system on a premise of invariant legislation function,better restriction on insufficient or undue medical behaviors, and more protection onRights of Life and Health and Right of Body.However, in order to make good use of mediating dispute functions ofEmergent Medical Treatment Institutions, it’s far from excellent only to verify thenature of the treatment. It’s extraordinary important to make judgment guidelines ofReasonable Diagnosis Duty clear, to reconstruct medical liability verificationinstitution, to consider region disparity of medical standard in fault judgment, toexercise Institution of Alleviating Burden of Proof conditionally, to prescribeexplicitly situations that patient can refuse emergent medical measures.