Concerning The Cognizance Of The Medical Fault

The seventh chapter of the tort liability Act "medical liability",55th,58of the rules ofwhich caused a broad discussion on medical fault identification. Due to involved law, andmedical and forensic, area, medical fault of found became judicial practice in the judgmentmedical fault responsibility of challenges, but due to medical fault is medical damageresponsibility of constitute elements one, its relationship major, so this problem mustsolution.Although at present about the cognizance of the fault have a subjective fault theory,objective fault theory, subjective and objective fault theory and so on many kinds of views,but the nature of the fault should be a condemned the subjective psychological state.Subjective fault is impossible to be others entirely accurate detection and awareness. But tofault liability for imputation principle in civil disputes, the medical fault cognizance is theproblem that a judge must face. The cognizance of the medical fault concerning, the tortliability law of the fault is objective theory, standards including specific standard medicalattention--the obligation of violation. Abstract standard--whether meet the correspondingstandards of medical care. These provisions and theory have some disadvantages, that is, theformer disadvantages including: in the legal system, lack of high rates of medical attention oflegal obligations of the unified regulations; medical knowledge of professional bigdetermining medical attention in violation of the difficulty of the obligations. The latterdisadvantages including: medical level fuzzy, extension broad meaning, high degree ofabstraction and generality; medical level of dynamic, and other factors. Therefore, only withthe above two judgment standard is not sufficient for the various disputes in practice. To this,the practice tends to adopt the path of medical damage identification and identifies themedical treatment fault in medical infringement disputes.However, the tort liability law is still no unified regulation of the relevant contents ofmedical damage identification, leading to the present two medical damage appraisal pattern coexist. Two appraisal patterns have their own advantages and disadvantages. Foreignmedical damage appraisal system and each has its strong point, our country should fullyconsider specific conditions, to face up to the current medical damage identification systemdeficiencies, such as identification of the main body of the determination, appraisalconclusion of authentication and adoption, identification of the main body of responsibility,foster strengths and circumvent weaknesses, reasonable construction of our country medicaldamage identification system. After the comparative analysis, the author thinks that build tothe judicial authentication of the appraisal system mainly, the damage was establishedmedical technology appraisal committee, perfect the legal system and the responsibilitysystem expert witnesses, to improve medical and damage the qualification of expert witnessestechnology, to clear up the expert witnesses and appraisal conclusion, the relation between theperfect expert witnesses challenge system, pushed forward different appraisal, strengthen theappraisal conclusion of cross-examination, authentication and adoption procedure of methodsto improve medical damage identification system is the important action.