A Research On Imputation Principles Of Medical Damage Liability In China

Tort Liability Law of People’s Republic of China has been implemented since 2010. One of its important improvements is a section with eleven terms focused on issues related to the liability of medical damage. The principle of fault liability, the principle of presumption of fault liability and no-fault liability principle are included in the system of imputation principles of medical damage liability to guide the judicial practice in solving related problems. Different treatments and provisions are stipulated to adjust the medical technology liability, medical ethics liability and medical products liability. This legislative breakthrough, has ended the ’two-track’ phenomena in the cause of action of medical damages, in compensation standards and in appraisal systems, which had existed in China for years; and has established an integrated system, based mainly on the fault liability and also including the principle of presumption of fault liability and no-fault liability. It is of great significance in the ease of the plight of patients in claims of medical malpractice, and the advancement of more equitable positions for both doctors and patients. However, five years has passed and the controversy of this law still exists in both theory and its practice. Learning from the advanced experience of the other countries, we can conduct a detailed analysis on issues of the implementation and improvement of China’s Tort Liability Law.Firstly, in a case of medical technology liability, it is difficult for the patient to bear the burden of proving the doctors’ faults, because in China usually there is an information asymmetry between doctors and patients. But we can adopt the advanced system from abroad, which can ease the patient’s burden of proof and make the process much easier. Since difficulties occur in proving a doctor’s fault and the causal relation between this fault and the consequences, these elements are not required to achieve the standards as’the fact is clear, evidence is completed’, so that the burden of proof can be mitigated.Secondly, as one of the basic principles of civil law, equitable liability principle should not be incorporated into the liability principle of medical damages. If equitable liability principle is applied on the liability identification of medical damages, the economic burden and the sense of crisis of medical institutions will be definitely increased, which can restrict their development. Sometimes, the application of equitable liability principle mixes with subjective standard of judges, which is ambiguous in most of the time. It is this kind of power that makes the judges tend to protect the weaker party, i.e., the patients; even the hospital is not really at fault, it still needs to compensate the loss of patients based on the ’principle of fairness’. But the amount of compensation among similar cases is not the same, even in big difference, which reveals the confusion in related lawsuits. In this way, what seems to be fair in a case, in fact, results in a lot of injustice.Next, in terms of damages caused by medical products, it must be clear that blood products should not be attributed to the general category of medical products. The principle of no-fault liability should not be directly applied to the cases in which damages occur when patients receive flawed blood products via transfusions. Medical institutions only have the basic obligation to verify the proper use of blood products, instead of a quality assurance of blood. If in the transfusion process, the correct operating procedures for blood test and blood usage have been followed in the medical institutions, they are not at fault, and should not be required to take responsibility, otherwise, it is unfair for medical institutions.Finally, the law to adjust the medical ethics liability is quite rough, and it should be refined to include specific types of medical ethics, which provides a more applicable operability in specific cases.