The Investigation Of Certain Issues On The Settlements Of Malpractices In Our Country

The accidents and the disputes in the field of medical treatment come to arise obviously, which arouses a wide attention of the public and becomes one focus of public attentions in recent years. The Regulations on the Settlements of Malpractices which was just publicized by our country makes primary regulations on the system of the settlements of malpractices, which provides a legal basis for the settlements of malpractices in our country. While, for many kinds of reasons, the system of the settlements of malpractices in force in our country still exists defects in many ways. The thesis explicates the issues on the basic theory of the system of the settlements of malpractices, analyzes the current situation and defects of the system of the settlements of malpractices in force, and puts forward the assumptions to perfect the system of the settlements of malpractices in our country, investigating the theories and practices on the settlements of the malpractices of the advanced countries and regions and referencing the related discussions on the settlements of the malpractices of the civil researchers.The accurate definition of the concept of the malpractice is the basis of the system of the settlements of malpractices. The concept of the malpractice in the legislation of our country is defined in a narrow sense, which steps further than the former related regulations, but many points are still with discussing to perfect. After analyzing the related laws and regulations of the broad, the thesis thinks that the concept of the malpractice should be defined in a broad sense and "the medical accident" should be included in the range of the malpractice. So, we have more exact recognition to the concept of the malpractice. Basing on this, the thesis analyzes the nature of the medical civil liability and its components earnestly, and analyzes the defects of the current system of the settlements of malpractices in force. The thesis thinks that there exist contradictions between the Regulations and upper laws, and its legal validity is doubted; about the determinations of the malpractice range, there are shortcomings among whatever the determination according to the criterion of subject fault, or the determination according to the hierarchal ways of medical damages, or the exceptional cases beyond the regulations; about the system of malpractice identification, though it has been reconstructed, the obvious defects still exist in the aspects of the subject of the identification, the start-up of the identification and the nature and the validity of the conclusion of the identification, etc. For such defects, to protect the patients' legitimate rights and interests, regulate the medical acts of the medical departments, stand up for the medical order, ensure the medical safety, the thesis puts forward the conceptions to perfect the system of the settlements of the malpractices of our country: first, the Regulations as an administrative statute should exclude the civil regulars to the malpractices, meanwhile the compensation of the medical damages should be legislated, that is Law of the Compensation of the Medical Damages', second, about the system of malpractice identification, the thesis maintains the identification by the way of "bi-blindness"(that is blind between the subject (judicial department) and object (patient and medical department) of theidentification), and the identifying rights of the identification institute should be limited; and the range of the members in medical community should be enlarged; third, there exists the mingling between the responsibility of the agreement violation and the responsibility of the infringement about the compensation of damages for malpractices. The thesis thinks that from the angle of the patients' benefits, it's beneficial to accept the responsibility of the infringement mainly when to settle down the problems about the compensation of damages for malpractices. When the court adjudicates the case of the malpractice infringement, it should accept the principle of "care about high not about low" when to determine the criterion of the compensation, and the criterion regulated in the Regulations can just be referenced; last, the thesis thinks that to avoid the medical risk, reduce the disputes between patients and doctors or medical departments, improve the medical technology, the insurance system of medical responsibility should be set up and carried out.The thesis has four main parts: the first part is about the definition of the malpractice on the basis of the comparisons with related laws and regulations of the broad; the second part is to analyze the nature of the medical civil liability and its components earnestly; the third part is to analyze the defects of the current system of the settlements of malpractices in force deeply; the last part is to put forward the conceptions to perfect the system of the settlements of the malpractices of our country from four main aspects.