Study On The Imputation Principle Of Medical Tort In China

Last year’s TV series about doctors once again pull the public’s view to doctorsand medical industry, causing a fierce discuss on the doctor-patient relationship.Many people talk about their treatment experience to each other via the Internet, somepeople give the point about how to change the status of doctor-patient relationship,medical malpractice, and so on. Nowadays, we all have a strong awareness of rights,thus more and more disputes arise in many aspects. The problem about tort iscomplicated and difficult, and the burden of proof is also hard. To solve this problem,not only our health care system need to reform, but also need to improve the legalsystem about medical injury liability. Our country’s "Tort Liability Law" waspromulgated in2009, and it regulates11articles about medical injury liability. Themost important reform is the end of the legal status of the dual structure in the field ofmedical injury, and unifies the concept of medical liability for damage. Although thelaw has made a provisions of the framework for the medical damage, but the questionabout which principle of attributions should be used in medical injury area does nothave a consensus among scholars, lawyers and judges, thus affecting the use of law inpractice. Therefore, it is necessary to carry out a systematic study of medical liabilityfor damage. This thesis discusses the topic in the following three aspects.The first chapter discusses the basic theory of the principle of medical damage liability. The first section analyzes the content and classification of medical damage,to give the theory support for the build of the principle of medical damage liability ondifferent types. Section II analyzes the meaning and nature of the medical liability fordamage. Section III is about the concept of the principle of medical damage liability,and discuss about the evolution of the legislation of it in our country. All the sectionsgive us a basic knowledge about the principle of medical damage liability, and thischapter helps us to pave the way of discussing it below.The second chapter has four sections to discuss about the system of the principleof medical damage liability. Section I talks about the academic disputes about thisquestion. Section II analyzes fault liability, no-fault liability, presumption of fault andfair responsibility, and concludes that “Tort Liability Law” adopts the first twoprinciples as a system. Besides it, it also suggests that Article58is not the concretemanifestation that the Law has adopted the presumption of fault principle as anindependent principle (as detailed in Chapter III). Section IV makes a comparativestudy about other countries legislation about medical injury liability law.The third chapter puts forward some suggestions about how to construct adiversified system on principle of medical damage liability. Section I advocates todevelop their own imputation principle and the burden of proof according to thedifferent types of medical liability for damage. Section II discusses Article58, whichis the most controversial one in the Law, and gives some suggestions on how to reviseit reasonably.