The Identification And Proof Of Medical Malpractice

In the current situation, the contradiction between doctors and patients has become one of the hot issues of the society. The number of medical dispute cases is also rising, accounting for a large portion of the proportion in a court case. In the medical disputes case, the identification of medical fault is the main work of a judge. It plays a very important role in the trail of the case, not only it determines the fairness and justice of the judgment, but also to safeguard the interests of both sides, especially the interests of the weaker party can get maximum protection. However, since the "tort liability law" promulgated and implemented, the contradiction between doctors and patients have been greatly improved, but in theory and practice of medical tort still exists some problems. Medical fault is the core of medical damage liability elements, but for the cognizance of the medical treatment fault cannot be reached theoretical consistency. The uncertainty and ambiguity in the theory of the Certification of medical fault may hinder the solution of medical conflicts in practice, to make matters worse, it may expand medical disputes. A theory is applied to practice in the end, in order to better solve the contradiction of patients and doctors, ensure the maximum benefit maintenance, it is necessary to carry on the thorough discussion to the medical fault, fully to grasp the medical fault, make clear for identification of medical mistakes, this is the final purpose of writing this paper.This paper mainly from the three part discusses in detail about the medical fault identification and proof:The first part mainly analyzes the general criteria for certification of medical fault and medical general fault identification standard belongs to the abstract standard.In this part,the present academia has not yet reached by consensus and the author make a full analysis of the current situation of our country on the general standards of medical fault. It starts with the fault knowledge and translates to the medical fault, and the combination of "tort liability law" article "54", "57" "58" relevant provisions of article and foreign medical fault identification standard of abstract situation has carried on the concrete analysis.It puts forward the view that "at the time of the diagnosis and treatment level of" comprehensive various factors to edge, not a single identification.The second part mainly introduces the concrete standard of medical mistakes.medical "duty of care" as the concrete standards of medical negligence, first of all, the author cites a small case to explain the related concept, mainly discussed how to identify medical attention obligation and it’s exception; then in view of the current complex situation of identify "the medical duty of care", put forward a viewpoint that the first thing is to judge whether the litigant have medical attention ability when identify "the medical duty of care". This part adopts the method of qualitative analysis, a full range of overall grasp of the medical duty of care. In addition, in order to achieve the combination of theory and practice, also uses the typical case of a detailed description of the process of the determination of medical negligence. In addition, the author of several special cases discussed whether it belongs to the violation of medical duty of care, and explains their reasons and opinions. Finally, according to the generalized medical attention obligation content, advocated to its refinement.The third part is about the content of proof of medical fault, including the burden of proof of the diagnosis and treatment of the fault of organization fault.The author advocates to take general responsibility,namely "who advocate who burden.In particular the difficult burden of proof, the author recommends the use of the transfer of burden of proof and the burden of proof system buffer system.In addition,it analyzes of the shortcomings of medical identification mechanism, and puts forward the identification of medical institutions to establish a unified.