Research On The Division Of Medical Fault Liability Standard

When medical treatment deviates from what expected,medical injury happens,then doctor-patient conflicts are increasing year by year.Even though,proportion of medical dispute cases is not so big in amount of civil and commercial cases,but the high social awareness,the difficulty of rial,long working period,the low cases removal rate.There are many legal problems about fault identification,appraisal procedure and liability constitutionabout fault identification,Among them,the identification of medical malpractice is the most difficult problem to be solved in the acknowledged infringement dispute.Physicians' duty of care is the start the find the medical treatmeat is fault.From the perspective of legal provisions,it is necessary to review whether the medical treatment meets the medical level at that time to judge whether the hospital has fulfilled its duty of care.Although the description of "medical level at that time" is flexible,developmental,but also vague and general,it is difficult to grasp in the trial practice.In order to clarify how judges handle medical dispute cases,this paper conducted data statistics and analysis of a total of 35499 effective judgments from 2012 to 2017.The statistics show: first,when the judge hears medical dispute cases,he takes the combination of factors into consideration and gives play to the subjective initiative in very few cases.Second,judges rely too much on expertise.To apply the law correctly,three problems need to be solved in the trial practice.First,what was the "medical level at the time",Second,at trial,determine whether the case reaches the "medical level at the time";Third,how to review the expert opinion.About "medical level at that time",it refers to the treatment method based on clinical medical practice at the time of diagnosis and treatment.The level of a rational,prudent physician.When determining whether a case has reached the "then medical level",the judgment is made at two levels.Level one: examine whether medical treatment violate laws,regulations,rules and regulations,and medical treatment norms.If they are violated,medical behaviors are at fault.;level two: with a rational,prudent physician standard review,reference between the level of hospital,physician qualification,geographic region,the patient's individual differences,the emergency patients and so on comprehensive judgment,finally it is concluded that the medical treatment whether to achieve "the medical level" standard,if not reach,decide to medical practice at fault.The judge how to review the appraisal opinions,need to clear criteria for the identification of opinion of fault is not equal to the criteria for fault,needs to review the appraisal opinions whether there are good medical scientific arguments,and whether there is a detailed analysis,for evaluation,using the method of judging them part of the evaluation factors,for out of the fact that identification of clinical medicine,should not be trusted?...