| In order to promote the modernization of national governance levels and governance capabilities,and achieve comprehensive and deepening reforms,it is necessary to pay attention to the leading and safeguarding role of the legal system at the legal level.At the legislative level,strengthening legislation in key areas is one of the important links,including the implementation of legislative work in medical and health.The Basic Medical Hygiene and Health Promotion Law of the People’s Republic of China was passed and promulgated in people’s expectations on December 28,2019,marking that my country’s legislation in the field of medical and health is gradually improving.Legislation has always served the judiciary.In judicial practice,the medical damage liability disputes that reflect the disputes between doctors and patients cannot be ignored.It is not only the main concern of social news,but also an important manifestation of people’s livelihood issues.In medical damage liability disputes,there are often three aspects that are likely to become dispute points in the case: one is the fault and fault participation of the doctor’s diagnosis and treatment;the second is the compensation items and calculation standards;the third is whether the appraisal opinion(including the technical appraisal of medical malpractice)should be adopted.It is not difficult to see that these three aspects of the problem are run through by the key element of fault,which is enough to see the importance of the determination of fault in such cases.Negligence is an important rule of tort law.This rule can play a certain role in the process of the court in allocating the compensation obligations of the parties by identifying and comparing the faults of both parties.This article starts with the case,through the summary of the case,discusses the current status of judicial application of negligence in medical damage liability disputes,and finds that negligence is applied in medical damage liability disputes when there is a mismatch between the application of rules and the legal basis and the application of negligence.There are three problems of unclearness and excessive reliance on the results of forensic appraisal.At the theoretical level,sort out the concept and theoretical basis of the negligence rule,and clarify the value orientation of negligence in medical damage liability disputes,so as to better apply the theory to practice.The countermeasures to improve the negligence rule in medical damage liability disputes are:first,use the negligence rule based on the comparison of the faults between the doctor and the patient,and supplement the force of the cause of the damage;secondly,at the court level,the reasoning of the judgment should be regulated and clarify the reasons for the application by analyzing the faults of all parties and demonstrate the application of the negligence offset;finally,we put forward relevant suggestions based on the judicial appraisal opinions in medical damage liability disputes.One is to improve the judicial appraisal system of medical damage through legislation,and the other is to adopt procedural improvements in the treatment of appraisal opinions in the trial of medical damage cases. |
