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Elements of medical malpractice liability for damages of

Author: NingXiaoKang
Tutor: HaiTang
School: Inner Mongolia University
Course: Legal
Keywords: Medical malpractice Damages Compensation liability Constitutive requirements Exemption excuses
CLC: D923
Type: Master's thesis
Year: 2008
Downloads: 354
Quote: 2
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Abstract

Since the 20^th century, the medical science technology and the medical organization scale in our country have made great development, and the medical quality and level have made great improvement, too. In the meantime, the attack and danger which the medical treatments bring to the human body are also increasing. Along with the China’s reform of the medical system and the daily stepped-up healthy consciousness and legal consciousness of Chinese people, the patients’ complains due to the disputes of medical accidents have increased much. Therefore, the interest conflict of doctors and patients have become more and more sharp and complicated, and then the disputes of medical accidents have become a serious social problem. It is an important subject to solve such disputes of medical accidents correctly, balance the conflict of interest of doctors and patients rationally, maintain the legal rights and interests of doctors and patients equitably for the persons who are engaged in the legislation, judicature and research of law in our country. Undoubtedly, the first step to determine the compensation liability of medical malpractice accurately is to confirm the constitutive requirements of it.Standing on the reality of high frequency-medical accidents in our country, this article comments and analyzes the different patterns of legislation of inland and abroad, and defines the basic meaning of the medical malpractice and the character of compensation liability of medical malpractice combined with the relative theories of the constitutive requirements of compensation liability of medical malpractice and the practice of legislation and judicature in our country. In the article, the author always insists that the theory should contact with the practice, and also contact with the legislation through such research methods as comparative law, analytical law and systematic analysis. On base of this, the author emphasizes the constitutive requirements and the exemption excuses of the compensation liability of medical malpractice. The article is divided into three parts. In the first part, the author defines the basic meaning of the medical malpractice which is also adopted in the "Ordinance on Handling Medical Malpractice ", clarifies the meaning and character of compensation liability of medical malpractice which is distinguished from the general medical compensation liability and which character is defined as tort liability, and demonstrate the constitutive requirements of compensation liability of medical malpractice in the end of this part which should comprise six essentials. In the second part, according to the constitutive requirements, the author thinks that it should comprise six essentials. Firstly, the liability subject must be a legal medical Organization. Secondly, some damages due to the medical malpractice must be happened. Thirdly, the medical conduct itself must be illegal. Fourthly, the damages must be produced in the course of medical activities. Fifthly, both the medical organization and the medical personnel should have subjective fault. And sixthly, there must be causality between the medical damaging conduct and the damages. In the third part, the author demonstrates and analyses the exemption excuses of the compensation liability of medical malpractice which are including general clauses, special clauses and admitted danger.

Elements of medical malpractice liability for damages of

Abstract

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