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Study on Medical Malpratice Liability of Traditional Chinese Medicine

Author: PanChangLi
Tutor: FengGui
School: Guangxi University
Course: Civil and Commercial Law
Keywords: traditional Chinese medicine burden of proof medical malpractice informed choice
CLC: D922.16
Type: Master's thesis
Year: 2008
Downloads: 112
Quote: 0
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Abstract


There are significant differences between traditional Chinese medicine and western medicine in treatment theories, guiding ideas, therapies and drugs principles. To a certain extent, they are two completely different kinds of medical models. At the present time, medical negligence liability institution is based on the rules and characteristics of western medicine, it doesn’t match to traditional Chinese medicine. It is obviously incorrect that legal norms of modern medicine rashly applying traditional Chinese medicine when its theory still can not be explained by the standards of the modern medicine. If this situation does not change, traditional Chinese medicine will be in a disadvantageous position. It doesn’t comply to the policy of the state, and can not provide the protection of the interests of patients and doctors. As a consequence, it will hinder the further development of Chinese medicine .Therefore, there is a urgent need that to set up the rules of traditional Chinese medicine which can be acknowledged by the modem med-mal liability institution and the theory of civil liability. The rules of traditional Chinese medicine can protect the interests of both patients and doctors, it also can reconcile the conflict between the two sides. The new rules can develop and improve the traditional Chinese medicine.In order to protect traditional Chinese medicine ,at the meantime not to damage the patients, the best way is to re-allocate civil liability system. Based on the comparative study of medical negligence China’s and foreign countries’ and considering the unclearness of cause of traditional Chinese medicine, the author suggested to apply the French med-mal theory to re-allocate the burden of proof. That is to say, to distinguish two different kinds of faults: first of all, the fault on medical science, second of all, the fault on medical ethics. To allocate the burden of proof according to the two different rules of med faults. On the other hand, as highest academic institute of traditional Chinese medicine, the Chinese medicine committee should have the authority over the lawsuits about Chinese medicine the problems. Furthermore, we should enhance the duty of notification of doctors, protect "informed choice" of patients, and set up Physician Liability Insurance system, as a result, when the med-mal occurred the victims can get compensation timely and fairly.

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