Study On The Liability Of Blood Transfusion Infection

In the medical field, blood has the good name of "source of life". However, in recent years, with a significant increase of blood for clinical use, cases of patients receiving blood transfusions infected by the virus infection is common. From the legislative perspective, Tort Liability Law implemented in 2010 makes a stipulation in principle. According to Article 59 of the Act, "if defects of drugs, disinfectants and medical apparatus and instruments or unqualified blood cause damage of patients, the patients can claim for compensation for producer or blood supply agency, also can claim for compensation for medical establishments. If the patients claim for compensation for medical establishments, the medical establishments have the rights to claim compensation from producer having responsibilities or blood agency after the compensation." From the above provisions of the law, it is seemed that "unqualified blood" and "defective drugs" apply the same doctrine of liability fixation in parallel. From the judicial practice, the practice of the court in judging these cases are not uniform, due to the different understanding of the articles of law, there always are phenomena that the same cases have different judgements in transfusion infection damage cases. Transfusion infection generally has damages on fitness, even life of victims. The correct understanding on relevant legal questions of this circumstance is related to the protection of victims’ legal rights. Therefore, this paper starts with judicial standpoint of transfusion infection infringement, summarizes treatment thinking of count for transfusion damage setsubun in current judicial practice. On this basis, this paper analyzes doctrine of liability fixation of transfusion infection liability for tort, constitutive requirement and liability subject and other related issues and tries to trying to make some comments for educational circles and judicial circles in China.Specifically, this paper consists of introduction, body and conclusion. The introduction mainly describes the current situation of transfusion damage problem worldwide and researches the significance of relevant legal question of transfusion infection damage.The text part can be divided into six parts. The first part is the different judicial positions of transfusion damage disputes. It regards implementation of Tort Liability Law as demarcation point, states the changes of standpoint of judicial circles when treating such cases. And it draws forth discussion focus of this paper from the phenomena that the same cases have different judgement due to different understanding of articles of law and different value orientation of judge.The second part is to clarify the related basis concepts of transfusion infection infringement. By distinguishing between blood and blood products, this paper introduces affirmation of legal attribute of blood, and paves the way for the post-amble. It is identified that legal property of blood is related to the problems that which doctrine of liability fixation shall be applied in transfusion infection disputes. By analyzing differences of blood and general products in the basic characteristics, the blood and the product are distinguished.The third part analyzes the doctrine of liability fixation of liability for tort of transfusion infection. Starting with divergences of rule principle of liability for tort of transfusion infection, this paper re-unscrambles the related articles of law. By analyzing the differences of "unqualified" blood and "defective" product, the gist of principle of liability for fault is obtained. Then advantages and disadvantages of applying principle of no-fault liability are analyzed, which can provide theoretical support for the author’s points.The forth part analyzes constitutive requirement of liability for tort of transfusion infection. By analyzing each constitutive requirement and combing judicial precedent to bring out the problems of identification to constitutive requirement. By contrasting the special provisions to affirm causal relationship and fault in each country, raise the suggestions which are benefit for our judicial circle to affirm the two constitutive requirements, causal relationship and fault. The author considers that "the high degree of probability" theory shall be brought in, and use judging standards of combing "high attention duty" standard and "operation rule" standard to affirm constitutive requirements.The fifth part analyzes the problems on responsibility confirmation of compensation for damages of tort of transfusion infection. There are different opinions in educational circles on the nature of blood offer organization and medical organization undertaking responsibility. By analyzing the theoretical basis of each opinion, the opinion of author on this problem is confirmed. In the dispute of transfusion infection, there is also a problem on claim concurrence. By analyzing the advantages and disadvantages of breach of contract claim right and claim of infringing, author considers that it is more favorable to protect self-interest for victims to select claim of infringing.Part VI is judicial proposal, combined with the analysis of doctrine of liability fixation, constitutive requirement and other aspects in the paper, the author put forward his own proposals, tries to find a more inexpensive way for juridical practice center to dispose medical tangle of transfusion infection.The conclusion summarizes and reviews the whole paper. The author hopes that recommendations in this paper can better protect the legitimate rights and interests of citizens. At the same time, there are many shortcomings in this paper, the author that he can deeply study in the future.