A Study On The Liability Of Adverse Drug Reaction

Medicine is the necessities for human’s health. Despite that medicine can relieve the patients of diseases, taking medicine may also cause some adverse drug reactions(ADR) in different degrees. Severe ADR even can cause enormous damage to the patients’ life safety. Nowadays,because of lack of legal basis about the adverse drug reaction liability in our country, the victims frequently can not gain compensation for damages when their lawful rights were damaged.Taking the medical dispute of Zhou v. Jinan Mingshui Ophthalmology Hospital as an example, this paper conducts law analysis mainly centering on the contending focus in this case.The main contending focus of this case include the following: how to decide the property of the adverse drug reaction in this case? What kind of liability principle should be adapted to decide the compensation in this case? Who should be responsible for the adverse drug reaction in this case?Based on the analysis of the contending focus in this case, this paper mainly focuses on the following questions: should we attribute adverse drug reaction to medical damage or product liability? Study of the applicability of the liability principle when there is adverse drug reaction,the demonstration of causal relationship, the distribution of burden of proof, and the identity of the liability entity of damage compensation. At the end of the paper, based on the analysis of this case,I analysis a series of problems existing in our country’s current judicial practice when handling with adverse drug reaction. The problems include: the defects of legislation about the liability of adverse drug reaction; the negative effect of the applicability of liability principle, verification system, and the distribution of burden of proof on the protection of victim’s legal right. For these problems, learning from other countries mature and valuable experience and practice, this paper puts forward some advices. And it may also helpful to afford some reference for the tackle of similar cases.