Researching On The Fault Of Liability For Medical Malpractice

Although the "Tort Law" has completely finished the unification of the elementsof construction of medical malpractice disputes. But, in practice, it doesn’t make iteasier and clearer to deal with the disputes. The difficult of dealing with this kind ofdispute still alive. This situation has a close relationship with the vague law itself, butit also has a close relationship with the old practice which would not quit the stage ofhistory. But, in reality, people’s consciousness of rights is arising, and the need ofhigher standards of medical treatments is also arising. And the settlement of disputesare relating to the safety of the country, the stability of the orderliness, and theharmony of the relationships. In this context, my research on medical malpractice isappropriate. This paper is focusing on how to identify the medical mistake of theconstruction of medical damage, which has an emphasis on discussing identifying avariety of different types of medical harm elements of difficult issues.The introductory part, mainly takes on a description of the actual situation. First,in China, it is clear that medical malpractice disputes are frequent. Doctor-patientconflicts and disputes are relating to social stability and social harmony. Although ourgovernment was trying to put forward health care reform, but ended in failure. Fromthe point of a legal perspective, medical malpractice disputes can be resolved bycontact breach or tort. When it comes to tort suits, it should meet the constituentelements of the tort suits. Although the "Tort Law" has been enacted, the specificidentification of constituent elements of the state is still fuzzy. The study on theconstituent elements still has theoretical and practical significance.The first part, mainly discusses the development of "the medical mistake" in thearea of medical malpractice. First, by comparing before the "Tort Law" enacted andafter of it, the "dual" of medical dispute settlement mechanism constitutes the"unification" dispute settlement mechanism constitute medical malpractice liability."Dualistic" system constituted under the medical damage caused contradictory resultsapplicable law, increasing the patient’s dissatisfaction medical disputes, resulting inidentification system "duality" adds tired, confused judicial order, impair the judicial authority. The "unification” elements such provisions changed in the past focused onthe protection status of the medical side, reflects the equal protection of both doctorsand patients have carried the spirit of the legislation, established the "unification" ofthe medical liability system, abandoned the medical malpractice case application ofthe law "duality" phenomenon,"Tort Law” elements of medical Malpractice formedon the basis of the medical malpractice liability system, in promoting the highestamendment " civil cause of action ", which specified such cases also has a cause ofaction active role,"Tort Law” elements of medical malpractice formed on the basisof the medical malpractice liability system to solve the scope of compensation issuesand standards applicable law. In addition,“Tort Law” distinguishes the “unification”elements of a distinction between types of medical malpractice disputes.The second part, discusses that under the system of "Tort Law”, different typesof medical malpractice have different kind of fault identification. This is one of thecore parts of the paper. First, how to identify the technologically medical fault. Thiskind of medical malpractice is applied to the principle of who is at fault forinfringement upon a civil right or interest of another person shall be subject to the tortliability. And it is applied to the rule of “who advocate, who proof”. In this context,the patient who sustains any harm during diagnosis and treatment should proof thetechnological fault of the medical institution or its medical staff except the specialsituation which applied to the mitigation of burden of proof. The difficult ofidentifying the fault of technologically medical fault is how to identify the fault oftreatment. Learn from Japan’s medical standards " concept, the basic standard is stillto see whether a doctor finish a reasonable duty of care, whether a doctor reach thestandard that a rational doctor should do. A simple standard is "operatingspecifications and technical regulations or guidelines that were developed by industryorganizations+discretion".Second, how to identify ethical medical fault. This kindof medical malpractice is applied to the principle of one who is at fault as construedaccording to legal provisions and cannot prove otherwise shall be subject to the tortliability. The key to determine the fault of medical side is complete the ethicalobligations and ethical obligations. Learning from foreign law, this paper proposes a"reasonable patients+specific patient "standard. At last, how to identify the managerially medical fault. This kind of medical malpractice is applied to theprinciple of who is at fault for infringement upon a civil right or interest of anotherperson shall be subject to the tort liability. The key to determine the fault of medicalside is identifying the fault of medical managment. And the standard of it is medicalmanagement rule and medical management responsibilities. This paper comes upwith a “double standard”, which is subjective fault+objective violation of theprovisions.The third part, mainly researches on how to prove the fault of responsibility formedical malpractice.We can refer to three theories about proving the causalrelationship to make this question clear: Certification Hypothesis, RebuttablePresumption and Completely Presumption. After deep analysis, this paper claims thatwe can apply different kind of theory about who has the responsibility to prove thatthey are innocent to suit different kind of medical damage. To be specific, medicaltechnology damage refers to rebuttable presumption. After the patient prove thedoctor’s fault to be a certain degree, we can precept that it is the doctor’s fault, so thedoctor has the responsibility to prove that they are innocent. Ethically medical fault,managerially medical fault is applied to Rebuttable Presumption. The two kinds ofmedical malpractice, the doctor’s fault is proved by the patient who sustained harm, ifit is a failure, we can hold that the medical side doesn’t have any fault, and themedical side needn’t undertake the liability.The fourth part is to study the application and construction of the identificationrules of medical malpractice. This part focuses on the discussion of the medical faultidentification. In the paper, First, we should construct the rules system of medicalfault identification, including the general rules and special rules of medical fault, theexemption rules in the medical fault identification; Second, the specific types ofmedical damages and how to apply the identification rules of medical damage. If thestandard of the identification of technical fault in medical technical damage is overthe safe and universal standard, the law should allow the judge’s discretion. And ifnot, the law should apply the medical operating norms, technical regulations orguidelines as identification standards. To medical ethics fault and management faultdamage, the key point to identify the fault of hospital lies in whether the doctors respect the patient’s right to know. Knowing it, we just identify the medical faultaccording to the rules normally. Of course, it is all possible to apply special rules andexemption rules in all types of medical malpractice disputes.