Study On The Legal Paths Of Medical Damage Relief

The medical care is a kind of behaviors with high-risk. With the development of medical science and technology, human beings not only need to face the practical danger of medical field, but also need to accept the potential risks of new medical technology, the probability of occurrence of medical damage is increased as well. In the meantime, the relief for medical damage is also increasingly attracted widespread attention. At last, the medical damage liability should be practicable on the issue of compensation. In this paper, our current medical damage relief system is analyzed and discussed in order to clear the problems encountered in the specific practice, and constructive suggestions will be offered to solve these problems. Meanwhile, to supplement and perfect our medical damage relief system, and solve various problems in medical field, we should learn from foreign countries the no-fault compensation system for medical injury. Specifically, this paper is divided into four parts:The first part mainly discusses the present situation and problems of China’s current medical damage relief system. Currently, our medical damage relief system mainly confined to the single relief path of “Tort Liability Law”, however, different levels of medical institutions, owing to their diversities in organization scale and economic strength, can not give the victim fair compensation. At the same time, the current system of medical insurance failed to make up the medical damage obviously.Consequently, a diversified relief system for medical damage should be set up.The second part introduces the first way of legal paths for medical damage relief,the perfection of medical tort liability. The “Tort Liability Law” particularly sets up a chapter, and gives a clear definition of the concept of medical damage liability. The character of medical tort liability and the principle of liability clear etc. a series of problems are made clear provisions. Under these laws, we can ensure the consistency of law application when dealing with medical disputes. But the “Tort Liability Law”still has some defects in establishing the medical damage compensation system. For example, the definition of related concepts, the dualistic pattern problem of identification for medical disputes, the burden of proof for causation of medical damage and the particularity standard of medical damage compensation etc. all these questions remain to be further refined in legislation. To deal with these problems, the author put forward the following suggestions: perfecting the legislation and strengthen legal interpretation, reforming the appraisal system and focusing on carrying out an united appraisal system for medical damage, making the burden of proof for causal relationship of medical damage clear and extruding the particularity of compensation standard for personal injury caused by medical damage.The third part discusses the second way of legal paths for medical damage relief,the development of medical liability insurance system. In terms of medical liability insurance system, its development at the present stage in China mainly depends on the government administrative power, which aims to protect the interests of the medical institution. However, due to the market demand is insufficient and itself is not perfect enough at this moment, the medical liability insurance has to face a serious challenge of slow and uneven development. The author presented some ideas to push compulsory medical liability insurance in our country, and this part includes a series of matters such as the positioning, the development mode, the limit of liability, the rate of premium of the insurance.The fourth part analyzes the third way of legal paths for medical damage relief,the construction of the no-fault compensation system for medical injury. With regard to this system, the author compared the distinctive no-fault compensation systems of United States, France, and Sweden. Moreover, concordant experiences are summed up by comparison so as to put forward the concept of establishing construction of the idea of no fault medical malpractice compensation system in our country, through establishing the no-fault compensation system for medical injury in our country. By setting up the national compensation system, accident insurance for no-fault compensation and special risk fund founding by medical institution, the loss of patients in no-fault medical damage can be offset to some extent.