On The Principle Of Imputation Of Medical Malpractice In China

Before 2009,medical tort was regulated by General Principles of the Civil Law and regulations on the medical accident treatment and the constraints of the two relevant judicial explanation,at the time in the aspect of imputation principle is a presumption of fault,namely,if Medical institutions and medical staff cannot prove that they have no fault in the whole process of medical liability,then it will bear the unfavorable legal consequences.Fault presumption keep the patients in the lawsuit in a favourable legal position,the legal status of the favourable can make patients in medical damage like to go to maintain the right which was violated,at that time,in consideration of medical professionalism and vulnerable groups,the mainstream view agree that implements the fault presumption in the field of medical tort imputation principle,however,after the promulgation of the tort liability act,the fault presumption principle in the field of medical tort is abandoned,fault presumption is only remain used in the tort liability law article 58 involving medical ethics field,on the basis of fault presumption's role in the field of the medical damage is very low.From the presumption of fault imputation principle to fault imputation principle,make patient slightly advantage status in the field of medical damage is converted into a disadvantage position completely,by comparison with related data can also be concluded that the transformation of the node,the quantity of violence injury medical case goes up a lot,make the person has to doubt,in the field of medical damage,the practice of such large fault imputation principle is reasonable or not,in the face the change from the presumption of fault imputation principle to fault imputation principle in the field of medical tort,scholars concluded that the reasons of fault imputation principle is more suitable in the field of medical tort generally has the following four points: 1.The fault imputation principle is the main imputation principle in the field of medical damage in other countries,there is not enough reasons for us to abandon fault imputation principle;2.The principle of imputation of fault is aggravating the burden of doctors or medical institutions,and doctors or medical institutions need to face too many medical lawsuits and complicated burden of proof,which will inevitably slow the progress of medical technology.3.Due to the medical behavior is to save the patient's life and health,involved the public interest,should not give too harsh lawsuit burden,harsh lawsuit burden make medical institutions will be too much energy into medical injury litigation,the attention to people's health will reduce,will be a bad influence on the public interest;4.Some scholars think that under the situation of presumption of fault liability,in order to avoid facing a difficult situation of proof in the litigation,the patient will be taken too comprehensive treatment of excessive behavior,the treatment is aggravating the burden of the patients,it is also bad for the patients.In my opinion,in the field of medical damage,only due to the existence of the above circumstances,to abandon its fault presumption of imputation principle is very far-fetched,to implements the presumption of fault imputation principle is a more reasonable way.This article willargument it is rationality in the field of medical damage to implement the principle of presumption of fault imputation from the pros and cons,the positive is the rationality analysis of fault-presuming imputation principle in the field of medical damage,the opposite is the refutation of the above four points of view.