Research On The Principle Of Attribution For The Liability Of Medical Damage

Medical malpractice is the hot issue existing for a long time in our country. With the development ofsocio-economic and improvement of legal system, as the patients, citizens are enhancing their legalawareness to protect rights gradually, which leading to more and more medical malpractices. The tortliability law clearly defined the principle of attribution for the liability of medical damage against thedisputes between medical institutions and patients, which is beneficial to patients’ right protectionaccording to the law. However, this definition for the principle of attribution has some flaws which needfurther legislative interpretation or judicial interpretation to protect the interests of both sides, medicalinstitutions and patients. According to the principle of fairness in civil law, seeking a balance of rights andobligations of both sides through equitable distribution of interests between medical institutions andpatients is beneficial to resolve the conflict of both sides, reduce disputes between medical institutions andpatients, build harmonious relationship between doctor sand patients and safeguard social stability.The principle of attribution for medical malpractices is researched and analyzed in this article throughanalyzing legislative flaws and judicial flaws of the tort liability law for the liability of medical damage inorder to investigate how to further improve the definition of the principle of attribution for the liability ofmedical damage.The first part in this article presents the basic theory of the principle of attribution for the liability ofmedical damage, wherein the introduction of connotation and characteristic for the liability of medicaldamage and the principle of attribution, the different theories for the principle of attribution for the liabilityof medical damage on Chinese scholars’ side, legislative development of the principle of attribution for theliability of medical damage and legislative definition of the principle of attribution for the liability ofmedical damage in the relevant countries which belongs to common law system or civil law system, inorder to define the basic theory of the principle of attribution for the liability of medical damage in ourcountry, analyze legislative experience of the principle of attribution in other countries to lay the foundationfor the further analysis of the flaws of the principle of attribution for the liability of medical damage in ourcountry.As to the second part in this article, firstly analyze the principle of fault liability, presumption of fault and no-fault liability for the principle of attribution for the liability of medical damage in our countrythrough legislative provisions in order to define the appliance under specific circumstances. Secondly,analyze the flaws of the principle of fault liability, presumption of fault and no-fault liability for theprinciple of attribution for the liability of medical damage in legislation and judicature, wherein faultidentification, analysis of legal situation for presumption of fault, difficulty in the burden of proof frompatients and overtreatment from medical institutions. According to analysis of special status betweenpatients and doctors, present the problem existing in legislation and possible inequities in judicature inorder to summarize the flaws of the principle of attribution for the liability of medical damage.As to the third part, according to analysis of basic theories and problems in legislation and judicaturefor the principle of attribution for the liability of medical damage, the author put forward her own ideasbased on the principle of fairness in civil law to improve the principle of attribution for the liability ofmedical damage in legislation and judicature, wherein improve the standard of fault identification and legalsituation of presumption of fault in legislation, and establish the expert witness regulation, easement for theburden of proof and insurance system for medical institutions, in order to distribute litigation liabilitybetween medical institutions in reason and protect the interests of both parties. Only considering justly thelegitimate rights and interests between patients and medical institutions, protecting the interests of bothparties, introduced further relevant judicial interpretation and legislative interpretation by the legislatureand the judiciary, and probing to establish better regulation of the principle of attribution for the liability ofmedical damage can resolve conflicts between medical institutions and patients, build harmoniousrelationship between doctor sand patients and safeguard social stability.