Study On Distinction Of Medical Risk And Duty Share

Law is one of social norms that regulate behaviors of people and behavior relations among people. However, the particularities of medical science and medical behavior are not be fully respected. Even further, the essence property of medical behavior is negated by the traditional thinking and methods, dealing with medical dispute. Either civil law idea or administrative law thinking on medical dispute has been alienated to the source, controlling people(certainly involved quite a little of law specialists)to approach medical dispute wrongly, which is one of the reasons leading public health reform failure, and which should be denied. Instead of this, a new approaching medical dispute system, respecting the particularity of medical science, confirming to the essence property of medical behavior, and being basically characterized by the imputation principle of social liability for medical risk, should be founded. And then medical law, as a new legal branch, also characterized by the imputation principle of social liability for medical risk, should be established. Of course there are many arguments and differences in relative questions so the author has studied the following major problems:â… . The imputation principle of social liability for medical risk and its basic theoriesOn the side of the concept and contents of the medical risk: medical risk means risk that people, in order to avoid the risk brought by their disease, have to be faced with in the process of medical diagnosis and cure when they are ill. Its basic contents are medical mistake, medical accident, expected risk medical, and unexpected medical. In realities at present,"the Regulation Conducting Medical Accident"should be appliated to deal with the medical mistake and medical accident. Yet because of the low legal standing of the regulation, a confused situation, created by wrong applications of"the General Principle of Civil Law of PRC, Consumer Rights and Interests Protection Law and the Regulation Conducting Medical Accident", has been emerged. On the other side of the concept and relative theories of the imputation principle of social liability for medical risk: with the positivism and analysis of the study method, the author gives the concept of the imputation principle of social liability for medical risk, ie responsibility system that every member in society is duty-bound to bear the medical risk with others and in which, the idea of"everyone has his own responsibility and help matters against medical risk together with others in the social system"is insisted on, and the particularities of medical science and medical behavior are based on; proves it is pseudoscience and acts on assumptions that the norms of the General Principle of Civil Law ,Consumer Rights and Interests Protection Law are appliated to deal with the medical dispute brought by the medical risk; clearly defines it can not fully solve all medical dispute brought by medical risk even if the Regulation Conducting Medical Accident is appliated; expresses that the medical law, as a legal branch, should be founded and in which, the basic standing of the imputation principle of social liability for medical risk should be emphasized; and expounds it should be enacted that every member in society has his own helping-others'right and helping-others'duty when being in face of medical risk. All of these lay a foundation for a comprehensive and rational system conducting medical dispute to be established.â…¡.The particularities of medical science and medical behaviorFirstly, on the side of the study object and way of medical science, it is expounded that the particularity of medical science is due to the complication of human life, and the complication determines the practicalness and exploringness of medical science.Secondly, the particularity of medical science determines the riskness, testingness, personal violability and vocationalness, which is the particularity of medical behavior.Thirdly, it is proved that the medical working is not commodity, ie the medical behavior has one of particularities of the public-spirited.â…¢.The legal position of the imputation principle of social liability for medical riskThe relationship between medical workers and patients is of itself. It is neither the relationship of civil law nor of administrative law. It is characterized by the imputation principle of social liability for medical risk. The principle is basic norm to deal with the medical dispute, and the reasons of which are the needs of ruling by law, the logical conclusion for science spirit being respected and the inevitable demand of the justice of the social basic structure.In this part, the author also briefly narrates the relation between the imputation principle of social liability for medical risk and the imputation system of civil law, and expounds an academic inclination that there is something to be improved in the civil law imputation system and it will be better that rationalness imputation principle is used as a basic principle in civil law imputation system.â…£.The application and legislate suggestion of the imputation principle of social liability for medical riskThe author considers that the application prerequisite is changing the idea on the legal property of the relation between the medical workers and patients, replacing that by the idea of Right-Orientation and giving every member in society the helping-others'rights against medical risk and clearly defining by law the helping-others'rights and duties of every member in society against the medical risk.On the side of relative institutions of concrete application of the imputation principle of social liability for medical risk, the institutions of medical insurance, the social liability insurance against medical risk, the social liability insurance against medical products and the relatives quality, the third party and the social liability insurance organization ,which bearing medical risk should be concerted; on the side of the establishment and construction of the organizations, the author suggests that the professionalness medical dispute court, tribunal or arbitration committee should be founded, and that the appraisal organization for medical risk paralleled with the equal rank to the medical executive management department should be done, too. The author also suggests that the medical insurance and the social liability insurance against medical risk should be borne by the special insurance organization. Meanwhile, the author proves the feasibility of the suggestions. Anyway, the establishment and application of the imputation principle of social liability for medical risk require the changing and transforming of the relative ideas and institutions. It is worth if the particularities of medical science and medical behavior are fully respected, if the essence property of medical behavior is grasped accurately, if the cognitive regular of human being is conformed to, if the helping-others'rights and duties of every member in society can be fully exercised and implemented, and then the relation between the medical workers and the patients can develop along the harmony way by the changing and the transforming.