The Research Of Liability Concurrence In Medical Product Liability

Tort Liability Law of People’s Republic of China promulgated in2010provides for “theliability for damages caused by medical treatment "for the first time expressly.Intheory,Professor Yang lixin puts forward the types of medical liability for damage can bedivided into medical ethics liability for damage, medical technology liability for damage andmedical products liability.Whereby,The tort liability law makes the rules of medicalproducts liability for damage in clinical activities in article59:“Due to the defect of medicines,disinfectants and medical instruments, or enter unqualified patients blood damage, patientscan or blood provider request compensation from the producer, also can to apply forcompensation for medical institutions. Claims for compensation for patients to medicalinstitutions, medical institutions after paying compensation, shall have the right to recourseagainst the responsibility of the producers or blood provider.”In the form of tort liability fordamage to regulate medical product, is undoubtedly provides a more clear and direct way forthe defects in clinical activities by unqualified medical products as well as the blood ofpatients.On the other way,Doctor-patient relationship defined as equal contract relationshiphas been basically reached a consensus, which also has been to many countries and regions ofcontinental law system by legislation and judicial practice, certainly in clinical activities ofpersonal injury caused by use of defective product, patients may require medical institutionsbe liable for breach of contract.Based on the same medical products damage facts, patients can exercise the infringementand breach of contract damages claims for compensation for damage, which means there is amedical product liability concurrence in the damage.But in the process of practice, even if thepatient has a damages claim to exercise the option, in accordance with the rules of the currentliability concurrence, no matter use what kind of damage compensation claims of patientsunable to realize the rights and interests of comprehensive benefits,which embodied in twoaspects:According to the theory of liability concurrence, the concurrence of tort liability andliability for breach of contract is only exists in the way of damages this responsibility, and ourcountry in the relevant liability concurrence theory has a certain deviation. Patients if thespiritual damage caused by the medical product damage, in accordance with the law of liability concurrence of our country, the patient can only exercise the right to claimdamages incurred a, if the exercise of default damage compensation claims, patients cannotobtain the compensation for mental damage; And medical product damage occurred and thediagnosis and treatment of medical institutions activities, activities, based on the diagnosisand treatment of medical institutions and patients contract relationship between medicalproducts, because of the medical institutions to provide medical products unreasonable dangercaused personal injury patients, constitute a harm to pay, then if patients for medicalinstitutions claims tort liability for compensation of its expected profit loss, also cannot getthe support of the court. Current liability concurrence model certainly limit the rights ofpatients claims way, unable to realize the rights and interests of patients with comprehensivebenefits.Visible, in accordance with the current medical products liability for damage rule is notthorough realization of the rights and interests of patients. This paper on the basis of medicalproduct damage, according to the above problem, put forward the corresponding Suggestionsin order to realize the rights and interests of comprehensive relief on the patients.This paper is divided into four main parts:The first part introduces the medical product damage exists concurrence of tort liabilityand liability for breach of contract, but by practical case in judicial practice, in accordancewith the rules of the concurrence of liability in our country, based on patients with medicalproducts damage facts can only choose one to exercise a kind of damage to the purchasing,and whether patient is the exercise of infringement or breach of contract damages claims forcompensation for damage, all cannot achieve personal rights and interests of comprehensivebenefits, and this is the current medical products under the damage liability concurrence ofpatients relief for the plight of the most important.The second part is the medical product tort liability imputation principle, constitutiverequirements and the corresponding liability forms and introduces the limitation of liability,points out that in accordance with the rules of the current liability concurrence, if a singleexercise of tort compensation claim even if access to property damage compensation andspirit damage compensation, but not for personal injury in patients with timely diagnosis andremedy, for patients, so exercise is not fully realized the tort compensation claim their rightsrelief. The third part is the medical product liability for breach of contract of imputationprinciple, constitutive requirements and the corresponding liability forms and introduces thelimitation of liability, points out that in accordance with the rules of the current liabilityconcurrence, if a single exercise for breach of contract damages, even if can timelyimplementation of personal injury in patients with injury to slow down, control or even curein time, however. For mental injury in patients with the facts, but not by default liabilityclaims for compensation, so also cannot achieve adequate relief for patients.The fourth part which based on the second part and the third part of the problemstatement, puts forward the implementation by means of responsibility expansion fully relieffor patients. Embodied in two aspects: first, the expansion of coverage. In patients under thecondition of claim for breach of contract claim damages, it shall be the patient’s mentalinterests damage compensation. If the patient is tort liability for damages, shall transfer thepatients’ expectation interests damage compensation. Second, expanding scope, the mainresponsibility will be the seller into the scope of the main responsibility of the medicalproduct tort liability. In the case of a medical institution can’t compensate patients, allowingpatients to medical products producers and sellers and blood supply institutions to claimdamages.