Research On Tort Liability Of Medical Cosmetic Damage

With the development of market economy,people's demand and desire for beauty is growing,and more and more medical cosmetic institutions have emerged quickly.In recent years,the number of various medical cosmetic institutions is increasing.However,the occurrence of disfigurement due to cosmetic treatment is emerging in an endless stream,resulting in more and more disputes.Medical cosmetology is different from traditional medical behavior.The former is more of a psychological need,while the latter is more of a physiological need.Medical cosmetology market is inextricably linked with the general medicine market,but people's demand for it is no less than the ordinary category of medical needs,and even it has developed into a unique medical market.Medical cosmetology is a kind of medical behavior for patients to realize their pursuit of beauty.Compared with traditional medical behavior,the agreement attribute of medical cosmetology is more stronger,and patients have more options and can put forward with more specific requirements or results.However,for the damage caused by medical cosmetology,both liability of breach of contract and tort liability can be claimed,which results in the concurrence of the two liabilities,and the patients can only choose one to claim.Through the analysis of the legal application of medical cosmetic damage,claiming tort liability is obviously more conducive to safeguarding the interests of patients.Medical damage includes medical technology damage,medical ethics damage and medical product damage.As medical damage can directly apply to the provisions on product liability,this thesis will not discuss medical product damage.There are some differences between medical cosmetology service and general medical service.Besause medical cosmetology service belongs to the category of medical service and meets the characteristics of medical service,the medical cosmetology damage caused by it should be applied to the provisions of medical damage.However,the particularity of medical cosmetology should be considered when the provisions are applied to,and.the particularity of medical cosmetology service should be taken into account when the guarantee of medical effect by medical institutions constitutes a significant influencing factor for patient selection.In the cases of medical cosmetology,from the perspective of tort law,medical personnel need to ensure the personal safety of patients in the process of diagnosis and treatment;and from the perspective of contract law,the medical party needs to perform the obligation of completing the cosmetology project under contract.In practice,such cases are generally handled as tort and require accident identification.However,the particularity is often neglected in the process of such cases.For medical cosmetology projects,giving other party the possibility of dominating the field of their rights with permission leads to the later results.Therefore,the specific agreement between two parties can be used as the basis for judging whether it conforms to the duty of care.Although the damage caused by medical cosmetic service can be covered by medical damage,medical cosmetic service actually belongs to the marginal area of medical service.It is different from the curability of traditional medical damage,and it contains the characteristic of cosmetic appearance.Thus,medical cosmetic service also has the characteristic of profitability.In order to safeguard the interests of medical cosmetic recipients and promote the healthy development of medical cosmetic industry,it is reasonable to apply to the principle of presumption of fault in the field of medical cosmetology.When the medical institution explains and confirms the medical effect but eventually results in the damage to the recipient of medical cosmetology service,it should be presumed to be at fault when the patient provides evidence to prove the damage as well as the commitment of the medical institution to the medical effect,unless it can prove that there is no fault.For instance,the patient has been clearly informed of the possible risks or there is no clear agreement on the medical effect,Since the authentication opinion plays a very important role in determining whether the causal relationship is established or not,the fact causality should be clarified in the authentication opinion.Medical cosmetic damage involves comprehensive knowledge of forensic medicine,psychology,sociology and other disciplines.The identification of medical damage should not be limited to the judgment of forensic medicine,but should be made comprehensive judgment based on the unified identification criteria by introducing psychologists,sociologists and other experts.Due to the profitability of medical cosmetic service,the expanded propaganda or false propaganda often occurs under the guidance of profitability.Because of the false propaganda,the medical cosmetic institution shall be made to pay punitive damages when patients make choice of medical cosmetic institutions under the false declaration of will.