On The Claim Based Upon Medical Contract Of Emergency Treatment

Two kinds of factual backgrounds, in which the claim of medical expense upon emergency treatment is rooted, are discussed in details in the following passages. One is that paramedics render emergency treatment without properly acquirable consent of patient or his close relative as manifestly described in Article 56 of Chinese Liability Law, and the other is that the emergency treatment is provided still in spite of explicit disapproval of patient or his close family member. The cause of action can vary remarkably in light of different approaches.The salient characteristic of the claim of medical expense upon emergency treatment lies in the point that both the claimant and defendant themselves are somehow of unique attributes, that is to say, the former no matter willingly nor unwillingly undertakes special social burdens and the latter actually is incapable of making such critical decision in time. This peculiar tiny little trouble may not be deemed as a piece of cake as far as Chinese courts are concerned, for the simple fact that none of Chinese civil law pays particular attention to this issue, which in return traps the hospital in moral dilemma that either to work for charity permanently once involving emergency service, which is utterly impractical for Chinese hospitals to sustain themselves as economic entities nowadays, or to turn a blind eye towards patients in need with ironclad proof against the ensuing social vilification and even retribution.The claim of medical expense can be safely justified once either one of the approaches among voluntary service, mandatory contract, contract de facto or implied contract de facto is adopted, of which implied contract of emergency treatment is optimal if the individual interest and normative interest are to be appropriately balanced. The claim of medical expense upon expense of emergency treatment must be wielded within limitations set by medical ethics and social orders. Implied contract de facto of emergency treatment may only serve a respectable and noticeable exception to the general rules of contract law. The expense of emergency treatment and additional outcome are all encompassed in the claim, the one for pertinent loss included.The special judicial process reviewing the emergency treatment is in great demand, if the conflict between moral duty and legal duty born by hospitals is to be eased rather than compounded. Additionally, specific liquidation and settlement programs aiming at various groups of patients shall be elaborated in order to enforce the claim effectively.