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Principles of Responsibility of the medical damage Niimi

Author: ZhangYao
Tutor: ZhangYongHua
School: Southwest University of Political Science
Course: Civil and Commercial Law
Keywords: Medical Malpractice Principle of fault liability Medical mistakes
CLC: D922.16;D925.1
Type: Master's thesis
Year: 2011
Downloads: 402
Quote: 1
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Abstract


Today's society, medical treatment is difficult and expensive and more problems, both doctors and patients more serious mistrust between the medical dispute resolution difficult, hard evidence of the phenomenon more obvious. This is not just institutional issues, or legal problems. NPC Standing Committee on December 26, 2009 voted by the \element structure. But there is about health damage Liability Principles and Elements of discussion not because of new laws and the dust settles, this doctrine is still no agreement. The author intended from the concept of medical injury, medical malpractice liability and responsibility principle and its constituent elements \divided into five parts. The first part of the liability for damage as a medical problem in the basic theory, namely medical malpractice and liability for discussion and assessment. Currently medical malpractice, medical errors, medical malpractice and other applicable on the nebulous concept, seriously affecting the judicial unity and communication theory. In view of this situation, I propose should use \creating a more scientific concepts. For the nature of medical malpractice liability, tort liability and breach of contract should be adopted competing responsibilities, said the request by the victim in the medical institutions and medical personnel assume responsibility for selection of medical damage. The second part, the author of the medical principle of attribution of liability for damage depth analysis. That medical malpractice liability whether in theory or in the \In the current situation of our country and the health status of the background, there is no liability without fault for the conditions and necessary, we can not apply the principle of equitable liability. As for the presumption of fault, I believe that is not a presumption of fault liability tort responsibility principle, but the principle of fault liability of the wrong done to determine the kind of proof rule, the burden of proof belongs to category, it can not be regarded as a normalized responsibility principle. As a proof rule, rule of presumption of fault can exist in medical malpractice liability principle of attribution of fault liability in the absence of fault as determined way, but their application should be limited. The third part, the author of the principles of medical damage Liability Elements of a detailed analysis, which focuses on the concept of a finding of fault analysis. That in medical malpractice liability, the concept should be adopted for fault combination of subjective and objective that should be adopted for the identification of fault objective criteria. Accordingly, the fault can not be divided with illegality, fault contains illegality. Thus, liability for medical malpractice Elements to take three essential conditions, including medical mistakes, medical consequences of the damage, behavior and medical mistakes causal relationship between the consequences of the damage, and these three elements were studied, analyzed the rule of presumption of fault and causation presumption rule in medical malpractice liability system of rationality. I also made the mistake medical malpractice liability is only one form of negligence, for willful acts that may constitute a criminal offense does not belong to medical practices, general tort liability shall be applicable. The fourth part, the author of the preceding theory \That which is not what people think of the \The lack of clarity exists between the provisions of the place easily lead to logic errors, coupled with academic theories on medical mistakes and medical malpractice liability constitutes an understanding of the different elements, so there are some terms that need to be discussed and perfected. The fifth part, the full text of the summary of views and put forward the development of China's medical cause individuals to improve health care law humble opinion.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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