Medical Malpractice Civil Liability Study

The modern spirit of rule of law lies in the reasonable recognition and protection of rights. No concrete protective measures about the rights, especially in the civil law field, for example, no the compensation system in torts, then the any provisions about rights would be as null. Just as Professor Peter Stan pointed out that the primary aim of legal rules is to protect people's body as well as their property so that they will not waste out their energies in the worrying about the protection of themselves. This dissertation, by the methodology of comparative law, discusses systematically upon the civil liability in the medical malpractice, which embraces its contents and essence, its principles of imputation, its prerequisite and the compensation. Therefore the whole dissertation is divided into four parts, and has more than 30,000 Chinese characters.In the first part, the contents and essence of medical malpractice civil liability, through comparing the concepts of medical malpractice among Japan, America and China, the essay establishes its own understanding: medical malpractice is ah accident in which the medical organs and their professionals breach against the regulations of medical and sanitation administration and the regulations or routine of clinic, lead to a .personal damages of patient negligently. The medical malpractice civil liability refers to the liability that the medicalorgans and its professionals should share when they breach against the relative legal provisions and infringe the patients* lives or health. As to the essence of liability, the author, based on the summing up of various academic viewpoints, raises his own viewpoint that the doctrine of coincidence of tort liability and contractual liability. But the coincidence is restrictive, that means the patient can only claim his or her compensations based on the selected one reason between the tort and the breach of contract.In the second part, the imputation of the medical malpractice civil liability, with the comparative method, analyzing the correlative theories and legalities in France, German and Anglo ?American countries, as well as the discussions of Chinese scholars, the author comes to the conclusion that the principle of imputation of medical malpractice liability should adopt the principle of assumptive negligence. Thus, it will conform better to Chinese laws.The third part deals with the composition elements of the medical malpractice liability. Because this problem is the core of civil liability of medical malpractice, this part takes a large space in the whole dissertation.The author assumes that the prerequisite embraces the following elements: the subject of liability, the negligence of subject, the severe outcome of damage, the act of the breach of duty, and the cause. As to the subject of liability, the author thinks that the subject of the medical malpractice liability is just as the same as the subject of behavior, that is, the medicalorgans. The subject of negligence is also the medical organ, but it is assumed by the behaviorer's subjective mood at the time of behavior, i. e. the behabiorer is in the subjective situation of negligence or excessive assurance. The behavior of breach of duty, which should be one of the elements of the prerequisite, mainly comprises of the following forms: the breach of the contractual duties, such as the duty of answering of inquiry, the duty of diagnosis, the duty of explanation and the duty of treatment, and the breach of legal duties, such as the breach of the duty of esteeming the patients' personal or property rights, and the breach of complying with the laws, regulations or orders.As to the outcome of damage in the medical malpractice, the author thinks it should comprise of the following contents-. the damage of patient's right of life, health and body, the damage of rights of property to the patient and its close relatives, and the damage of the patient's reputation, privacy and its close relatives* moral damages. Meanwhile, the author believes...