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A Comparative Study of Sino-US medical malpractice damages regime

Author: JiangYi
Tutor: QuMaoHui
School: Hunan Normal University
Course: Jurisprudence
Keywords: Medical Malpractice Liability for damages Compensation for Accident Medical malpractice compensation Disclaimer condition The main responsibility Damages The injured party Medical care in the U.S. Medical staff
CLC: D913
Type: Master's thesis
Year: 2001
Downloads: 571
Quote: 4
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Abstract


American medical malpractice refers to all compensation possible medical events, thus covering a very wide range. One adverse events in health care due to medical malpractice (medical malpractice). This is the focus of this discussion. Relative to the U.S. medical malpractice in terms of \range narrow. Starting from the perspective of civil compensation, medical malpractice should include the fault of the medical side to cause the risk of side damage, in accordance with the principles of civil law can be obtained on the civil damages remedy all medical adverse event. The responsibility of the main actors of the United States such incidents coincide. Major medical institutions, doctors, nurses, managers, pharmacists and radiation experts and technical personnel. Medical institutions in addition to be liable for damage caused by the fault of their own behavior, but also damage behavior of its employees in accordance with the regulatory responsibility jointly and severally liable. The doctors and nurses and other medical personnel responsible for each in accordance with the direct provision of law or occupations recognized standard for each infringement. The actors and the main responsibility for medical malpractice is separated, in general, the main responsibility of medical institutions for medical malpractice and medical personnel for such incidents actors. Actors and coincides with the main responsibility of the medical personnel as the main responsibility, one hand can increase the sense of responsibility of the medical staff, as well as the responsibility of medical units risk reduction, the medical liability risk diversification. 's Liability for damages in medical malpractice tort liability and breach of contract in the United States are competing. Suffering from side either to liability for breach of tort liability on the medical side filed a request for compensation. But in general tort liability filed a request for compensation. Chinese scholars on medical malpractice liability for such a proposition. But only admitted in our judicial practice medical malpractice tort liability for damages. TCM party liability established medical malpractice negligence tort situation must exist in the medical side of the fault as a precondition of its constituent elements: the Note obligations of the medical side of the risk of side; medical side failed to fulfill its should try our best to pay attention to obligations; suffering from damage to the party; the medical side failed to fulfill their duty of care and the risk of side damage due causality. Medical malpractice compensation in China, the implementation of the principle of fault Liability its main constituent elements of the theory of the three elements and the four elements that the tomb of the meaning of the United States is similar, only four elements that can more emphasis on subjective psychological fault imputability With the implementation of the principle of liability without fault in some countries medical malpractice compensation and medical malpractice compensation request, and the substantial increase of the amount of compensation in the United States there have been requirements in medical malpractice damages in the implementation of the no-fault liability voices, no fault liability principle also began to be implemented in some areas, such as the Florida Obstetric the baby nerve damage from the 1989 introduction of no-fault damages the innocent infringement constituent elements of behavior, damage, behavior and damage results between the cause and effect relationship. American medical malpractice damages including economic damages, non-economic damages and punitive damages. Economic damages to the victimizers party because of the damage led to the decrease in revenue of the injured party and the corresponding compensation to the injured party. Medical malpractice compensation economic damages for past and future reasonable medical and health expenses; funeral expenses; Family Services must; past and future loss of income and loss of economic assistance or services. non-economic damages The risk of side suffered pain, inconvenience, emotional torture, mental anguish, loss of comfort, humiliation, compensation, and other non-pecuniary losses. punitive damages when the damage due to the production of heavy fault or due to the safety of others. disregard caused the harm to pay a fine, generally as additional compensation to the injured party, some states require part or all handed over to the Government, the remaining parties to give the injured party as compensation. determination of the United States on non-economic damages according to the discretion of some state regulations on non-economic damages and punitive damages up to a maximum. China there is no system of punitive damages, economic damages in addition to the income compensation for a greater access and the United States, and the rest is roughly equal to the non-economic damage that the moral damage compensation in the judicial basically established, but still very irregular Overall, the amount of damages for medical malpractice low, it is very unfair to the injured party, and we can learn from the experience of the United States to regulate the future loss of income and mental damages. American medical malpractice damages of proof principle applies to civil action principles of proof to the plaintiff to obtain the compensation advantage must have credible evidence (preponderance. F. Redible evidence) that the plaintiff only has over its anti-party favor one's own can the letter evidence to favor. Only in the fact itself shows the the (Res workers psaLoqui tur) case, the burden of proof was transferred by the plaintiff to the defendant. Medical malpractice burden of proof in the case of suffering from side according to the expert conclusions proceedings, the burden of proof is actually suffering from side, and the court in the case of expert conclusions generally require medical side to proof its not at fault, then the implementation of is the principle of presumption of fault. In general, it is necessary to improve the medical malpractice burden of proof depends on our civil litigation system, especially the evidence system improvements, and there is a lot for us to learn from the experience of the U.S. in this regard. Medical malpractice damages defense: risk is assumed that the captain and borrowed servant relationship between the principle of contributory negligence and comparative fault Good Samaritan Act, foreign causes, limitations. Our medical malpractice damages disclaimer conditions although there are several provisions in the \Disclaimer condition should be roughly equal and the United States. For which exclusively of medical malpractice Disclaimer condition, such as the conditions of exemption in the case of first-aid can also learn from the experience of the United States to make special provisions in the law. In order to guard against the risk of malpractice liability, medical liability insurance in today?

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