Study On Tort Liability Caused By Blood Transfusion

In recent years,lawsuits caused by blood transfusion have gradually increased.But the legal nature of blood and criterion of liability are still not clear defined.The phenomenon of different judgments in the same case in practice is widespread.In the current legal regulations,the provision of unreal joint and several liability leads to medical institutions overburdened.It goes against the direction of health care reform.It will certainly damage the healthy development of medical enterprise over time.Therefore,this article centers on Article 7 of the"Interpretation" to demonstrate the issues above.To discuss the tort liability of blood transfusion,the concept of blood and blood transfusions should be clarified first.This article suggests that blood should be understood in a board sense,including blood and blood products,and that autoblood is not subject to this restriction.Infringement caused by blood transfusion is the form of infringement that the blood transfusion services is the liability subject.At present,the focus of disputes on such cases in theory and judicial practice is mainly the legal nature of blood and the identification of unqualified blood.Through analysis and argumentation,this paper draw the conclusion that blood belongs to the product,and the determination of unqualified blood is based on whether the behavior of medical staff conforms to the requirements of relevant laws and regulations.According to the objective theory of fault,the judgement of the behavior of medical staff will inevitably involve the judgment of medical negligence.Based on the experience of Japanese legislation and judicial practice,this paper puts forward the viewpoint that the medical staff should pay high attention to the duty and recognize the relativity of medical level.It is generally believed that if blood is a product,it must apply the principle of no-fault imputation.Through interpretation of article 7,this paper believes that the presumption of fault liability is the best choice to deal with transfusion infringement cases,and make a rational analysis on the basis of the foundation of economic,medical,ethics,the specificity of blood,social policy background and judicial practice.The clear subject of responsibility is the premise for adequate relief for patients.Problems in any part of the blood flow can cause blood disqualification,but the current law only stipulates that the medical institutions and the blood providers bear unreal joint and several liability.The absence of the carrier's liability will inevitably aggravate the liability of medical institutions.In addition,subject to the particularity of the tort of blood transfusion,no matter what the principle of imputation has its shortcomings.For presumption of fault liability,there still has some problems,such as conflict in law application,the burden of proof for patient is too heavy and can not apply to the case of no-fault blood transfusion infection.Finally,this paper puts forward some corresponding measures to solve the problems above,such as supplement the application of principle of fair liability,reverse the burden of proof in causation,include the transporters within the scope of the compensation subject and establish a special fund.It is hoped to provide useful reference for the tort liability of blood transfusion in our country.