| The concept of medical damage identification is closely related to the medical damage liability stipulated in Tort Liability Law.Medical damage identification is the main method for the judge to solve professional problems in the trial.The expert opinion often becomes the most important evidence of the judge’s judgment.However,identification of causality in medical damage is often the most difficult one.With empirical method and method of comparative analysis,this paper studies causality decision rules in identification from the aspects of law and medicine through cases of medical damage identification.The causality in medical damage identification is causation in fact.Therefore,sine qua non rule,key factor rule and probability rule should be used as decision rules.Medical damage identification is not purely causation in fact identification.So medical experts are required to make the value orientation and policy judgment.Although the judgment of causality is the judge’s work and Normzwecktheorie as well as foreseeability theory are applied by the judge,the analysis of objectives of laws and regulations from the perspective of the medicine and the scope of foreseeable damage causes given by medical experts are needed.Medical damage identification should clearly present the analysis and reasoning process of the experts as well as reasons for punishment.The court cross-examination provides the basis for the judge’s efficient and fair overall consideration.This paper includes the following content:The first chapter is to sort out the causality theory of Tort Law of the two legal systems,summarize the function of causality and analyze the characteristics of causality in constitutive requirements of medical tort.The second chapter is to demonstrate categorized causality in medical damage identification and sort out the functional mechanism of and logical relation between medical behavior and damage result,including simple causality,mutual causality,chain causality and contributory causality.In the third chapter,cases are used to analyze matters need attention of selecting decision rules for the identification of causation in fact in medical damage identification.The possibility of applying the causality theory and the principles in medical damage identification are reviewed.In addition,this paper discusses the problems that appear in the expert opinion,such as the fault substitution causality,ultra entrusted scope identification and the improper selection of the causality decision rule as well as puts forward the corresponding measures. |
