On Tort Liability For Medical Damage

Tort liability for medical damage refers to adverse facts caused by medicalprocedures on patients, such as diagnosis, treatment and nursing care, which areprovided by medical institutions and their personnel.Tort liability for medical damage refers to the adverse consequence of medicalstaff being held responsible for the damages to patients that are caused by their faultsin medical activities; or so long as damages are caused, they should be heldresponsible for such damages, whether there is a fault or not.The essence of medical damage liability is a type of tort liability: firstly, medicaldamage liability is not a simple obligation of civil contract, and it also containsmandatory obligation in public laws, and there is no promissory obligations based oncontractual relationship in particular cases; secondly, in general, judicial practice alsomake the compensation cases on personal injury fall under the compensation of tortliability for damages; Thirdly, tort liability is much more useful in protecting theinterests of patients. The compensation for damage in contractual liability is usuallyonly for property damage. But in tort liability, apart from victim’s claim forcompensation on property damage, they can also claim for compensation on spiritualdamage, namely the consolation money for spiritual damage. Therefore, medicaldamage liability is a type of tort liability.The scope of compensation for medical damage can be categorized into threetypes: compensation for positive damage, compensation for negative damage andcompensation for spiritual damage. Positive compensation includes: compensation formedical expenses, care services, food subsidies, transportation costs, accommodation,costs of equipment for disability and funeral expenses.Negative compensation for damage includes: compensation for delay of work,cost-of-living for the disabled and the dependents.Generally, fault liability principle is applicable to the doctrine of liability fixationon tort liability for medical damage, and doctrine of presumption is applicable underthe stipulation of law. Doctrine of liability fixation determines components, and the components of tort liability for medical damage include four aspects: medical fault,medical tort, consequence of medical damage and medical causation.Tort of medical damage is a tort that happens in the medical field, and it shouldmeet three requirements: firstly, the subject must be medical institution and itspersonnel. Secondly, it must take place in medical procedures. Thirdly, it must beillegal activity.The consequences of medical damage are the damages to patients’ body,property and spirit.The assumption of medical damage liability requires causation between damageconsequences and illegal activity in medical treatment. The doctrine of liabilityfixation for medical damage liability is the general principle, namely the faultprinciple, with burden of proof reversed.Medical disputes are difficult cases in civil trial, and there are no goodapproaches to deal with them well. Court judgment depends too much on expertconclusion; however, there exists quite a big problem in the impartiality of expertconclusion due to the commercial operation of expertise organization. Therefore, inorder to solve medical disputes better in practice, we should actively explore adiversified mechanism to deal with these disputes, and perfect the arbitration systemfor medical damage disputes.