The Study On The Issues Relating To Identify The Negligence In Medical Dispute

In recent years, the doctor-patient disputes are often reported in the news media, especially in some cases of medical malpractice compensation and doctor-patient violence becomes the hot spot of social attention. Accordingly, how to resolve the conflicts between doctors and patients, protect the interests of patients, medical institutions and medical personnel, are the medical and legal issues to be resolved. Medical malpractice is a special branch of tort theory, and medical fault is an important component of tort theory. Then, in the field of medical malpractice, the research on the standard of medical fault identification has become a top priority. There are also a lot of theories about identification of medical faultin the extraterritorial and China's academic fileds,with no uniform standard and large theoretical differences. Therefore, from the extraterritorial and China's standard of medical fault, this thesis summed up the main aspects of medical fault identification standard and pleadable reason, using empirical analysis combined with identification of medical mistakes in the judicial practice of our country, found the existing problem of the standards in medical fault and the judicial practice in our country, and put forward the relevant suggestions.This thesis is divided into four chapters. The first chapter is the general introduction of medical fault. It covers three parts, including the connotation of “fault” in general tort theory, the definition of medical fault, and the value and significance of the research of medical fault identification standard, from the concept of fault, fault identification standards, the concept of medical fault and characteristics of medical fault to elaborate the connotation of medical mistakes. The second chapter is about the extraterritorial or national medical fault identification standard, which divided in four parts, includeing the dispute of subjective and objective standards, the civil law countries medical fault identification standard and common law countries medical fault identification standard, and the inspiration through the comparative analysis of foreign medical fault identification standard, mainly discusses the medical fault standard from dispute of the subjective and objective standards, to the later on widely recognized objective standard, and to the differences and characteristics of two legal systems, in medical fault identification standard,and finally, through the comparative analysis of two legal systems and the medical fault identification standard theory in foreign countries, in order to get enlightenment of standard theory of medical mistakes. The third chapter discusses on main investigations of medical fault identification standard and the excusation of medical prevention, through the comparison of the medical fault identification between the two different legal systems and the typical country, this part sums up the main investigations of medical fault identification standard and the excusatio of medical prevention, medical fault identification standard, the description of the two concepts: medical obligation and medical level, and the interpretation of medical fault identification, therefore, come to the conclusion of the specific application of generally accepted standards of medical care,medical obligation and obstructed. The fourth chapter is on identification standard and defects of medical mistakes legislation in our country, and the suggestions for improvement, including China's legislation of identification standard and pleadable reason of medical mistakes, the existing legislatin defects, and the suggestions for improvement. This part is mainly to solve the problems in the judicial practice of the standard of medical negligence in our country. So as to achieve a fair solution, and reach a consensus on understanding the relative standards of justice whether with medical field, law field or patients, which is conducive to solve the doctor-patient contradiction problem.This thesis follows the concept, theories, through the comparative analysis of the theories in different countries, summarizes and puts forward the research path solution, and through three aspects such as the comparative analysis method, case method, and solving problems, exploring the research significance of medical fault identification standard on all aspects, deeply analyzing the main aspect of this standard, and the cause of resistance, putting forward the perfection of medical fault identification legislation in our country, and the innovative practical method of medical fault identification theory in terms of theory and practice.