Discussion On The Tort Liability For Damage Caused By Drug Defects

In recent years,tort disputes involving damage caused by drug defects are common,which has become a hot issue in the fields of medicine and law.The first part of the thesis discusses the principle of liability identifications.According to the provisions of the Civil Code and the Drug Administration Law,the tort liability for damage caused by drug defects in my country is governed by the principle of no-fault liability of product liability.Among them,the application of the principle of no-fault liability to medical institutions has been controversial in judicial practice.The author believes that the mitigation of no-fault liability should be applied to medical institutions.The second part of the thesis is an analysis of the elements of the tort liability for damage caused by drug defects.Firstly,the identification standard of drug defect is analyzed.The unclear identification standard of drug defects is a difficult problem often encountered in judicial practice.The author believes that different identification standards should be applied to drug design defects,drug manufacturing defects,drug warning defects and drug tracking observation defects according to the classification of drug defects.Secondly,the damage consequences caused by drug defects and the causal relationship between the use of defective drugs and the damage consequences are expounded.Different judgment methods should be applied to simple causal relationships and complex causal relationships.Finally,it expounds that the establishment of tort liability of drug sellers and medical institutions needs to consider their subjective fault factors under specific circumstances.The third part of the thesis mainly analyzes the form of tort liability for damage caused by drug defects.Among the most common unreal joint liability,after one or several of the joint liability persons such as the medical institution,the manufacturer and seller of the drug bear all the responsibilities,they have the right to recover from other joint liability persons who should be responsible but fail to be.When a medical act and a drug defect jointly cause damage to a patient,the medical institution,the manufacturer and the seller of the drug shall bear joint liability externally,and shall bear shared liability internally,and the method of comparing causal force can be used to determine the amount of responsibility that each responsible person should bear internally.The fourth part of the thesis discusses the scope of compensation for tort liability for damage caused by drug defects.My country’s Civil Code does not make specific provisions on the calculation standards of disability compensation and death compensation.This thesis argues that there should be appropriate restrictions on the rules governing the application of the compensation standard at the location of the court in question.For the calculation of death compensation,two compensation ranges,urban and rural,should be determined according to the victim’s habitual residence under the dual mode of urban and rural areas,and then a more detailed and accurate compensation amount should be determined individually according to the victim’s own situation.Our country does not set a limit for the compensation for mental damage.This thesis believes that the maximum range of compensation for mental damage should be limited.