On The Civil Liability For Medical Malpractice

In recent years , medical disputes have been the hot spot in the society ,which has perplexed both hospitals and patients. Only some of the medical disputes are medical malpractices, which require the hospitals to bear civil liability. This paper tries to make both hospitals and patients have a clear and proper understanding of medical malpractices by analyzing theories and practice about them. Thereby, medical disputes can be reduced and medical malpractices can be solved easily. Medical malpractices belong to civil infringement acts. Although medical malpractices must have certain components that constitute civil liability , there are still some specialties in the concept ,components and dissolution of responsibility of medical malpractices. By analyzing the above problems, the author gives his own view. In the first part, the concepts of medical malpractices both in broad sense and narrow sense have been provided through analysis of concepts of the national and international medical malpractices. Meanwhile, a conclusion is draw from analyzing the development of medical malpractice legislation: The connotation of medical malpractices has the tendency from narrow sense to broad sense until it associates with rules of civil laws. In the second part, the components of civil liability in medical malpractices are discussed. The main body of civil liability in medical malpractices is medical organizations and medical workers. This paper analyses the main body of civil liability in medical malpractices under special conditions. The medical malpractices must happen in the medical activities. Here the author also discusses the specific connotation of medical activities. In the respect of illegality medical malpractices must break medical hygiene management laws, administrative laws and regulations, department rules or diagnostic nursing regulations, which, in broad sense, include all kinds of standards, rules and regulations by hygiene administrative departments and national trade unions, and cover the second and third specific science inclinical medicine. Both unwritten and written conventions and regulations cover from common problems to special diseases, from pathogen diagnosing to nursing treatment, and from common diagnostic skills to high -tech diagnostic skills. This paper also talks over the two basic forms of contravention -- positive acts and negative acts. If medical organizations and medical workers have made subjective negligence, then their civil liability belongs to fault principles. According to the eighth item in the fourth chapter of Several Rules on the Evidences of Civil Action by the supreme People' s. Court, the country applies negligence presumption to civil liability in medical malpractices. The patients must be hurt and the degree of being damaged should be mainly judged by the injury at that time, in addition to the body' s condition after treatment. Only under this condition do the medical organizations and workers make medical malpractices. There is causality between medical organizations ' and workers ' illegal act and the patients ' suffering. This paper also canvases the standards of causality of different law schools. It is thought that the confirmation of medical malpractices should use the causality of the continent laws. In the third part, defensive reasons on civil liability in medical malpractices are discussed. The civil liability of medical malpractices must satisfy the following conditions: The damage to the patients must have cause and effect relation with medical actions: when performing medical acts, medical organizations and workers have made subjective faults, and their acts break the law. Even when medical acts have been considered the reasons of the patients ' being damaged, if medical organizations and workers' subjective faults can be eliminated, then this kind of medical act does not break the law, thereby, there does not exist medical malpractice. First, this paper analyses the six specific rules in Management Ordinance of Medical Malpractices. Second, this paper also analyses the special reasons of dissolution of responsibility. Third, the author discusses if allowable danger can become reasons of dissolution of responsibility. Allowable danger should become theimportant standards of judging medical malpractices. However, when judging the degree of allowable danger, the victim' s legal rights should be emphasized. Finally, the author explores if the validity of ordinances of dissolution of responsibility can become reasons of dissolution of responsibility, and usually, regulations of dissolution of responsibility about damage to patients are void.