Tort Liability In Using Blood

The use of blood in today’s medical activities can be very common and important, and blood transfusion has also been used to save countless people’s lives. However, everything has two sides. Because of the pollution problem, the medical use of blood can also cause a lot of damages to patients, and sometimes may even affect the life of their whole family. This is one of the initial reasons to write this paper.By studying the infringement caused by blood use, the paper is about to analysis the constitution of the elements in blood transfusion, in order to clarify the nature of the blood transfusion tort, imputation principles and the causal relationship. During the process of writing, the writer draws on both domestic and oversea research of related problems, and puts forward own views on some controversial issues in order to make them clear.This paper mainly uses the theoretical analysis, literature research and case analysis of research methods to fully reflect the value of the problem and the importance of discourse. Theoretical research is to find theoretical support for the relevant issues. The main purpose of the study is to obtain the relevant views on this problem, and to draw lessons from this paper. Case analysis means using the specific case in the judicial practice as an example, and analyze its problems. The thesis is mainly looking for literature, including books, journals, papers, edited, translations, newspapers and cases etc. During the course of formal writing, the writer combines this problem with principles of civil law, finds its scope of application in theory, and then applys the theory to the specific case.This paper is divided into five parts, the first part is the introduction, in this section the writer focuses on the issues raised, the value and significance of research, literature review, research methods, thesis and dissertation structure such as lack of innovation and problems, and by this section explains the basic situation of this study;The second part is the nature of the tort liability in blood use, this part is subdivided into three sections, respectively whether it is product liability, whether it belongs to medical malpractice liability. Through the discussion of this section, it is mainly to clarify the legal nature of the blood, whether blood transfusion infection disease is the product liability, medical malpractice liability and other issues. The legal nature of the blood is controversial, there are two main points of view, one is that the blood is a product, the other is that the blood is not a product. And in this paper, by analyzing the nature of blood products, I demonstrate the conditions of “processing or manufacturing” and “sales” respectively, and hold the view that the blood used in these two areas both have not been reached the definition about the concept of the product in the Product Quality Law. The conclusion is that the blood is not a product. At the same time, the case of blood infection which occurs naturally could not been considered a product liability. Concerning the liability of the medical accident, I take the view that the damage caused by the non-fault of blood transfusion meets the standard regulated in Medical Malpractice Management Regulation. By comparing the constitution of the elements in blood transfusion, disease infection by non-fault blood transfusion should also be identified as medical malpractice, and the relevant laws or regulations should be amended.The third part is about the subjective elements of tort liability in the blood use.This part mainly discusses the infringement cases on the problem of subjective state of the behavior actor and applicable imputation principles. Through comparing the cases, analyze the principles of liability applicable in blood transfusion infection, and clarify the applicable principle in specific circumstance. After the discussion, the conclusion is the general principle of tort liability should be applied in diseaseinfection by the fault blood transfusion. Because in this case, there is no special problems and it is just a normal kind of medical torts. It is recommended to apply non-fault liability principle in the situation of non-fault blood transfusion infection. Because the difference between non-fault blood transfusion and fault blood transfusion is mainly in the subjective element, in other words, the medical institution or the blood-bank has no fault. However, the patients still have the risk of being infection by blood transfusion under this circumstance, and there is no secure for the risk they faced. So, I hold the view that the non-fault blood transfusion should been regulated as a special tort. Further, the concept of “disqualification” should be abandoned when regulating the problem of non-fault blood transfusion, and establishing the risk sharing mechanism over the whole country is advised in order to reduce the damage of non-fault blood transfusion.The fourth part is about the objective elements of tort liability in the blood use. This part mainly analyses medical tort behavior and the legal problems, tort damage and the scope of tort damage, the causal relationship between them. By demonstrate the casual relationship about the diseases by blood transfusion, theoretical form of liability principles should be settled, so that the problem can be solve reasonably. Among them, whether tort behavior related illegal acts should be the constituent elements is analyzed, and I advocate that the illegal act should been thought of as an essential condition. The problem of damage results from the general theory is studied, it is divided into property damage and non-property damage, and is divided into personal injury, property damage and mental damage. As for the cause and effect of the reasons in demonstration, it should be distinguished the responsibility to set up the scope of responsibility, the different types of how to determine the criteria is important.The last part is a summary of the whole article through the review of the study, and this part also discusses the establishment of liability insurance system and fund system, and is also a sublimate of the content for this article. It is hoped that the risk of blood transfusion infection would be shared in a larger scope, and relieve their burden of medical institutions and patients, finally the use of blood can be truly safe,reliable.