A Research On The Fault Identification In Medical Damage Liability

Medical Tort is a special field in tort law. On the one hand, since it has the direct bearingon the patient’s life and health benefits, it is likely to cause great social consequences.Therefore correctly handle medical injury disputes is particularly important. On the otherhand, fault is the core issue of tort law, it is the premise to judge whether the perpetrator shallbear tort liability. But because of the specialty and complexity of medical practice, it isdifficult for the judge to decide whether certain medical actions are mistakenly performed. So,a unified reference standard to identify medical fault is needed in practice.Modern doctor-patient relationship is built on certain social, cultural, economic, ethicaland religious basis, and meanwhile obviously affected by those factors, therefore, social factorshould be taken into consideration when discusses the standard of identifying medical fault.This means focusing on the balance of both doctor’s and patient’s interests while also takinginto account the overall interests of the third party, that is, the parties of patients beside thelitigant.Though fault by nature is subjective concept, it should be measured by objectivestandard. The standard can be divided into concrete and abstract levels. First, let’s look at theconcrete level. If the perpetrator breaks the laws and regulations or acts in violation of thenorms of his/her profession, that is at fault. However, to meet the conditions of concrete levelis not necessarily at fault, judgment should be made together with the abstract level, which isthe society the perpetrator lives in where the standard makes him/her a reasonable person.When confirmed the existence of the fault, if the case need to determine the degree of faultthe perpetrator performed, it is necessary to dig in the objective facts to reason out theperpetrator’s subjective state.Liability of medical damage can be divided into three kinds, namely, liability of medicaltechnology damage, liability of medical ethics damage and liability of medical productsdamage. The identification of fault in liability of medical damage should be done distinctivelyin different situation.The medical technology damage refers to the physical injury caused by medicaltreatment. It fits in the general fault principle, so that the identification of fault in medicaltechnology damage should be done according to the characteristics and types of medicaltreatment. The specific standard lies in the related compelling laws and regulations of medical fields, and the abstract standard is the “medical level” of the time the damage occurs, namelythe general duty of doctor group, this standard is free from the influence of individualdifferences.Medical products damage includes damage caused by products and damage caused byblood. Blood itself is not a product, but in the Tort Law it is considered as a product. Medicalproduct liability is non-fault liability between patients, medical institutions, blood supplymechanism and producers. So, it is unnecessary to take fault identification in to consideration.But on the ultimate phase of bearing the responsibility, it is fault liability, thus it still involvesidentifying the fault. In determining the ultimate responsibility, product defect is the mainfault case for producers. When there is a national or professional norms, in violation of thenorms should be considered as fault. When there is no relevant norm, the code "ordinarypeople have the right to expect security" should be taken as the standard to identify the fault.All of the rest damage other than the two kinds listed above can be classified as medicalethics damage, of which the infringement of informed consent right, invasion of privacy,violation of organization and management obligation are the common types. Among them, theviolation of organization and management obligation is similar to the fallback provisions inthe law, including violation of the timely rescue obligations, breach of cases safekeeping duty,practice of unnecessary inspection and so on. Each specific type has different requirements onthe duty of medical institutions and medical staffs.