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Analysis of medical tort damages in a unified two-track

Author: KangXiaoLi
Tutor: WangWei
School: Fudan University
Course: Legal
Keywords: Medical tort Damages Professional Liability Presumption of fault Malpractice Identification Standard of compensation
CLC: D922.16
Type: Master's thesis
Year: 2009
Downloads: 132
Quote: 1
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Abstract

In this Article, the current judicial practice in the medical tort damages for the specific phenomenon of two-track research and analysis, trying to find solutions.Medical tort damages should be harmonized by the Tort Liability Act to adjust. Damages for medical malpractice is divided into medical and non-medical malpractice damages, medical malpractice damages provisions of applicable regulations, non-medical malpractice damages for judicial interpretation. Due to regulations and judicial interpretations of the provisions vary, leading to the same or similar legal relationship subject to different legal to adjust.Medical tort liability under special tort liability, in tort liability based on the type of legislation should be classified as experts in the type of responsibility. Experts liability do not apply the principle of liability without fault imputation, while the application of the principle of fault liability attribution. But experts can not be the fault of the responsibility of the general fault liability, but should be presumed fault liability. Suffering from side side on the medical malpractice claim medical liability, the medical side should prove that there is no fault, or it should bear the liability.The reasons for medical tort liability in the power of rules, mainly reflected in the scope of liability with fault identification and several co-infringement of shared responsibility between the two situations. The reasons for the rules applicable to power can be fair and impartial manner to determine the liability of medical institutions, medical institutions will be to avoid the heavy medical fault-based liability approach adopted by the increase in medical fees passed on to all patients.The establishment of the authority of the medical identification system. According to the distinction between medical and non-medical incidents,identification can be divided into medical malpractice and general forensic identification, but identification of the standards can be divided into identification of medical malpractice personal injury criteria and standards for the general identification of the human body injury. Medical treatment is a highly specialized professional conduct required by the specialized agencies and professionals to determine,it is suitable that medical malpractice expertise would organize the identification.Compensation standard and compensation for specific application areas. Judicial interpretation under the standard of compensation than the standards stipulated in the Ordinance should be high, and to be more detailed and reasonable; Ordinance standard of compensation is low, and a number of content requirements were relatively simple, it was for the patient’s rehabilitation and protection of the rights patients have heirs unfavorable.

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