On Tort Of Medical Nonfeasance

Tort of medical nonfeasance refers to the situation where the qualified medical institutions and personnel who are capable of fulfilling their obligation but deliberately not, leading to the damages to the patients, and have to assume the responsibility. It is based on the relationship of the tort, therefore adjusted by the Tort law. This paper firstly discusses the basic concept of the tort of medical nonfeasance, the damage behavior and its conditions, definition and elements, and then analyses the reasons, status and characters of tort of medical nonfeasance in order to reveal its damages. In the second part , it is deeply researched on the issues arising in the theory and practice in infringement of medical treatment non-feasance,such as the presentation about the law relationship of infringement of medical treatment non-feasance, the analysis of the differences between the responsibility of it and that of medical treatment defaulting in order to make the feature of infringement of medical treatment non-feasance clear and make the conclusion that it should not classified into the general defaulting. On the basis of the research of part one and two,the research moves to the responsibility of medical treatment defaulting and to definite the principle of the imputation of medical treatment defaulting and the constitutive requirements and onus probandi as well as the causa replicationisnd compensation of medical treatment defaulting. In the end , put forward the measures of avoiding medical treatment defaulting on the aspects of legislation and management.As far as tort of medical nonfeasance is concerned, firstly, tort of medical nonfeasance is an act which is comprised of animus and corpus. Neither of the two can be dispensed. Secondly, tort of medical nonfeasance commands that it must happen under given (or specified) occasions, that is, during the whole process of medical disposal activities, there must be given (or specified) subjects who should have fulfilled one's obligation while damaged consequence occurs. Thirdly, Tort of medical nonfeasance has specific characteristics. It mainly includes the confirmation, the difficulty of judgment, imputation and the difficulty of keeping away Tort of medical nonfeasance, etc.Some issues exist when Tort of medical nonfeasance is used in practice: Firstly, people may easily confuse Tort of medical nonfeasance with Medical-breach. Therefore, this thesis will distinguish the two concepts by studying the characters of violating obligation behavior, the victims, and the means of taking responsibility. Secondly, Tort of medical nonfeasance has its own characters, including that the doer violates others'civil right because of his mistakes during in medical treatment, and the doer must take responsibility of his tort. It has to research the responsibility of tort of medical nonfeasance if overall research is required to tort of medical nonfeasance. According to the present laws, tort of medical nonfeasance belongs to ordinary tort, whose imputation principle should apply to fault responsibility principle. While according to related regulations of the eighth item in the fourth item of Some Regulations about Civil Law Evidence carried by the highest court, medical tort case applys to imputation principle of fault deduction. This article considers that fault deduction principle is fault responsibility principle in essence, which is in accordance with ordinary fault responsibility principle in terms of standard of value judgement and elements of responsibility constitutes. Fault deduction principle is a special form of fault responsibility principle; and it is a practical application of medical tort.Finally, on a basis of relatively systemic and deep reseach of tort of medical nonfeasance, a prevention principle is put forwarded, which is prevention beforehand as a main device and disposal afterwards as a supplement. From the two levels, legislation and management, to reduce the occurrence of cases of tort of medical nonfeasance. Expecting this article's exploration to be able to provide reference for related theoretical research and practical operation.