Research Of Medical Tort Liability

Medical tort has got a lot of attention by educational world,because it is a special tort, and in recent years, the doctor-patient relationship is more and more nervous, dealing with medical disputes in our country's legal system of institutional reform is imperative. To enact “The tort liability law of the People's Republic of China” again,has the new definition of medical tort liability, and try to make the medical tort dispute is resolved by the law, in order to understand the basic structure of medical tort liability, subject of the two sides should bear the responsibility and China's relevant laws and regulations in this regard.In this paper, the new tort liability law of our country law about health damage were analyzed, and the author discusses among the related concepts, constitutive requirements, imputation principle and the burden of proof and so on several aspects, and then puts forward the shortage, and give personal advice to the lack.This article is divided into four parts, the first part is the summary of medical tort liability: first of all to let readers understand the meaning of medical practice, there is no clear regulation about the meaning of medical behavior in China, this paper listed the views of many scholars at home and abroad; Secondly the author analyses the definition of medical tort from various angles, this paper gives a definition of medical tort from the four aspects:concept, classification, characteristics, constitutive requirements, lists the different scholars on the definition of medical tort, and chooses the concept of a thought which is relatively accurate, that medical tort is in the process of diagnosis and medical subject some behavior, and these actions violated the relevant laws and regulations, caused some damage to the patient as a result, medical subject therefore bears the corresponding legal responsibility. For the classification of medical tort liability, this article argues from whether a medical accident, medical subject whether there is a subjective offence, behavior type. Then the characteristics of medical tort can be divided into subjective requirements to the particularity of main body, the actor, the particularity of the time, and in violation of the law which has the particularity of the four. And constitutive requirements of medical tort including the subject must happen during medical institution and its medical staff, diagnosis and treatment, where there are illegal behaviors at 3 o 'clock; Finally the nature and type of medical tort liability, in our country, the nature of medical tort liability mainly there are three kinds of theories, this paper analyses three kinds of theories in detail, found that the medical liability for damage may belong to the tort liability, which should use tort law to adjust, and the author lists three reasons to support this view, according to the tort liability act chapter 7 of medical tort liability, it is divided into medical technology liability for damage liability for damage, medical ethics and medical product liability for damage. The second part mainly discusses the components of medical tort liability, this article agrees with "four elements", respectively from the subjective fault, illegal behavior and damage result, discusses respectively the causal relationship between the four Angle: in the first place the discourse of subjective fault, fault is the general theory of fault and fault were analyzed, which extends out of the medical treatment fault, concluded that medical treatment fault mainly medical negligence rather than deliberately; Followed by the analysis of the illegal act, from the concept, this paper respectively discusses the results of illegal, illegal) and determines that the point of this article is to avoid illegal actions;On the constitutive requirements of medical tort in our country, there are a lot of debate, the detailed analysis of the constitutive requirements should be included in the cause of the illegal act; Again, the paper analyzes the damage result and the result of medical damage characteristics, the concept of characteristic from medical injury results in law relief the necessity and possibility of medical damage results should have two aspects of objective authenticity deterministic analysis; Finally this paper studied the causation, causation in the academic circle has disputed, while conditions and reasons are analyzed in detail. And the the determination of causation are analyzed in detail. The third part is the medical tort liability imputation principle: first the principle of liability fixation of tort in China is analysed on the basis of theoretical analysis, proposed our country academic theories about it, with or without fault liability principle, fault liability principle and principle of fault presumption. No-fault liability principle is mainly to see if there is a "dangerous", a good balance of the opinions of the parties; The principle of fault liability principle reflects that everyone is equal; Fault-presuming principle can be separated into a controversial imputation principle, this article elaborated that here can be a separate the cause of the imputation principles; Secondly, by our country medical tort liability imputation principles of academic point of view, analysis, respectively, the aothor agreed with no fault liability principle, the principle of fault liability and presumption of fault principle, emphasized the importance of presumption of fault principle, proposed that fault liability principle and presumption of fault principle should be taken to combine the method; Finally, according to the constitutive requirements of four aspects of medical tort liability, the burden of proof respectively were expounded, including medical treatment fault of the burden of proof of illegal, medical burden of proof, burden of proof of medical damage fact, causality and the special circumstances of the burden of proof. The fourth part is the improvement of the system of medical tort liability law. First of all, from the aspects of legislation and judicial analysis of medical tort liability system in China, legislation, the applicable regulations on the medical accident treatment in our country is only applicable to the compensation of medical accidents, and the general principles of the civil law are too general, so the proposed legislation should be introduced as soon as possible to a more perfect legal system, justice, the appraisal mechanism in China, "normalize" problems in the current appraisal mechanism and the appraisal model, although in practice played a larger role, but still exist many drawbacks, so the identification and forensic authentication institutions organized the judicial appraisal of problems to be solved; Second, dialysis the related system of continental law system countries, provides experience for the improvement of the system of medical tort, analyzed here in Germany, France, Japan, Russia and the United States, tend to adopt the practice of Germany and Russia, in the civil code of medical damage compensation principle, standard and scope of regulation, to avoid "normalize" phenomenon; Finally, the author puts forward the Suggestions of perfecting our country's medical tort liability system, legislation should be the new "tort liability law" as soon as possible and increase the operational judicial interpretation to complement the legislation. What's more, the government should also improve the system of health care, modify the various laws and regulations of health industry regulations, and set up the department of the rights and interests of patients. The judicial aspect, should cultivate specialized medical infringement cases the judges, strengthen the organization and management of authentication institutions. The third party mediation mechanism, establish doctor-patient dispute for both doctors reached a settlement to create a smooth and effective platform. Finally the author proposes intensify efforts to introduce mandatory medical liability insurance system, to ensure the victim's damage to get compensation in time, reduce the financial burden on both sides.