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Research On Medical Service Contract

Posted on:2020-01-21Degree:MasterType:Thesis
Country:ChinaCandidate:Z H ChenFull Text:PDF
GTID:2416330572489754Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
With the progress of modern society and the development of science and technology,medical service activities are becoming more and more extensive and diversified.The awakening of patient's autonomous consciousness has led to significant changes in the basic model of doctor-patient relationship.Patient requests more initiative in medical service activities,and the contradiction between the professionalism and the technicality of medical behavior is becoming increasingly prominent,and the number of medical disputes cases is also increasing.At present,the tort liability law is mostly applied to adjust medical damage,but the contradiction between doctors and patients can not be fundamentally alleviated,or even worse.Medical service contract disputes,as one of the causes of civil disputes,have not received due attention either in theory or in practice.Therefore,this paper attempts to make a comprehensive study of the concept system of medical service contract and the construction of its legal relationship from the perspective of the contractual nature of doctor-patient relationship.In addition to the introduction,this paper is divided into four parts:The first part is about the necessity and value of medical service contract.This part starts with the concept and legal attribute of doctor-patient relationship.On the basis of clarifying the equal legal status of both doctors and patients in medical service activities,it considers that the basic model of doctor-patient relationship has changed from "paternalistic model" to "contractual model",and that the doctor-patient relationship itself has the basic characteristics of contractual relationship,so as to highlight the importance of facing up to the contract book of doctor-patient relationship.Qualitatively,it is important to strengthen the research of medical service contract;secondly,it reveals the malpractice of adjusting medical disputes through tort path from three aspects: the restriction of concepts,the insufficiency of legal basis and the lack of dispute prevention mechanism.Under the circumstances of increasingly fierce contradictions between doctors and patients,it is quite urgent to study medical service contract;lastly,it explains the unique value of medical service contract and recognizes it.For its natural advantages in terms of pre-regulation and post-relief,it is in the fundamental interests of both doctors and patients to study the medical service contract and conform to the development trend of the times.The second part is the concept system of medical service contract.This part first putsforward the definition of medical service contract after synthesizing various viewpoints,that is,medical service contract is based on the disparity of medical knowledge and technology between doctors and patients,and it is agreed that medical service should be provided by doctors and patients,for which patients should pay the corresponding medical expenses;secondly,it is divided into "general" for medical service contract in the current theoretical circle of our country.The mainstream views of medical service contract,health examination contract,experimental medical service contract,special medical service contract or "general medical contract,health examination contract,compulsory medical contract and special medical contract" are questioned.It is believed that "experimental medical activity" and "compulsory medical activity" should not be included in the adjustment of medical service contract according to their connotation and characteristics.Domain,and put forward the suggestion to classify medical service contract by "general medical service contract,health examination service contract,special medical service contract".Thirdly,the characteristics of medical service contract are analyzed,and it is clear that medical service contract has its own particularity compared with other types of contract.Finally,through the analysis of the legal nature of medical service contract.According to the introduction and analysis of the theory,medical service contract can not be attributed to any kind of famous contract,and it should be stipulated in the process of compiling the contract in the Civil Code.The third part is about the legal relationship of medical service contract and its construction.Firstly,this part discusses the identification of doctors and patients as the subject of the contract under different circumstances.Secondly,it demonstrates in detail the specific subject of offer and commitment in the process of concluding medical service contract,and discusses the form and content of offer and commitment in the process of concluding medical service contract,the situation of change of medical service contract and the cause of termination.Next,this part focuses on the relationship of rights and obligations between the two sides of medical service contract.It advocates that the doctor should bear various obligations while enjoying certain rights.The main obligation of payment is "diagnostic nursing obligation".The obligation of payment includes "the obligation of making,providing and preserving medical records","the obligation of explaining and informing" and "the obligation of referral",accompanied by the obligation rules.Including "duty of great care" and "duty of confidentiality";while enjoying "right of self-determination" and "right of informed consent",the patient also has corresponding obligations of "cooperating withdiagnosis and treatment" and "paying medical expenses".Finally,this paper analyses the constitutive elements and the way of assuming the liability for breach of contract of medical service,and discusses the hot issue of compensation for mental damage caused by breach of contract of medical service.It holds that the right of claim for compensation should be affirmed when non-breaching party's mental damage is caused by breach of contract.The fourth part is the conclusion.This part clarifies the purpose and main points of this study,that is,starting from the nature of the contract of the doctor-patient relationship,straightening out the basic conceptual system of the medical service contract,and then combing and constructing the specific legal relationship of the medical service contract.In order to effectively clarify the rights and obligations of both doctors and patients through the medical service contract system,curb the current situation of medical disputes from the source,enhance the sense of responsibility and mutual trust of doctors and patients themselves,jointly create an equal and harmonious medical environment,maintain a fair and orderly medical order,and conform to the trend of diversification of medical services.
Keywords/Search Tags:Doctor-patient relationship, medical service contract, medical breach of contract, medical damage compensation
PDF Full Text Request
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