The Study On Physicians’ Liability Of Tort In China

In recent years, liability of tort of physicians is the hot spot in Chinese civil law academia research. This paper is divided into four parts to discuss the liability of tort of Chinese physicians. The first part is the implication and nature of physician experts’liability; the second part is the identification of tort liability of physicians; the third part is assumption of liability of tort of physicians; the fourth part is how to perfect the liability system of physicians tort in China.The first part, implication and nature of physician experts’ liability. This part first discusses the implication of physician experts’liability, holds that the concept refers to a physicians causes the patient or the third person to suffer damage due to his fault in the practice process, the physicians or his entity shall bear the civil liability. Then, the nature of physician experts’ liability is discussed, the liability of physician experts in China is mainly liability for tort.The second part, identification of tort liability of physicians. This part studies the constitutive requirements and burden of proof of physicians’ tort liability. The author thinks that, the tort liability of physicians is a kind of fault liability which causes damages to the patient or the third person by physicians’illegal behavior; it is composed of four elements, the principle of burden of proof should apply to the inversion of burden of proof.The third part, assumption of liability of tort of physicians. This part discusses who is to assume the tort liability of physicians. First, medical institutions rather than individual physician shall assume the liability, of course after the compensation of medical institutions, the physician may also shoulder some liability; secondly, the liability assumption way is making compensation for medical damages; lastly, for torts due to the consent or negligence of the patient or his close relatives, or caused by technical obstacles, medical institutions can be exempt from liability or given a mitigated liability. The fourth part, perfect the liability system of physicians tort in China. This part discusses the defects of current liability system of physicians tort in China and proposes the countermeasures. There are four main suggestions:the first is to establish separate special law, the second is to use Alternative Dispute Resolution for relief, the third is to establish the liability insurance system of physician experts tort, the fourth is to establish the liability compensation fund system of physician experts tort.