An Empirical Study Of Fault In The Liability For Medical Damage

The provisions on medical damage fault in China’s tort liability law have undergone two changes.Before the promulgation of the Several Provisions of the Supreme People’s Court on Evidence in Civil Proceedings in 2002,there were no clear provisions on the fault of medical damages in China,and the patient should bear the burden of proof for the fault of the medical institution in accordance with the principle of "who claims and who proves".After the implementation of the Provisions on Evidence in Civil Procedure,China has reversed the burden of proof for the fault and causality of medical damage,and the medical institution bears the burden of proof for the absence of fault for its medical behavior and the lack of causal relationship with the patient’s damage.After the implementation of the Tort Liability Law in 2010,the principle of attribution of fault for medical damage in China has become the principle of fault liability,and the burden of proof for the existence of medical fault is borne by the injured party,and only in the three special circumstances provided for in article 58(article 1222 of the Civil Code),it can be presumed that the medical institution or medical staff is at fault.It can be seen from the swing of legislation that legislators have made a lot of reflections and value trade-offs in measuring and balancing the legal relationship between doctors and patients,which also shows that the value balance of the doctor-patient legal relationship is difficult to grasp.The academic discussion of medical faults has not stopped,but the research is mostly based on legal theology and comparative law,ignoring the reality of legal practitioners.In recent years,the call for social science law research has gradually increased,but it has been criticized by scholars that "social science law with no value cannot solve the normative problem".In response to the question that "the gap between facts and values,between facts and norms is insurmountable",social science law scholars have made efforts to jump out of the perspective of "critics outside the system",frankly admitting that values intervene,and exploring methods that derive from reality to what should be.The sociology of law,which is an integral part of social science jurisprudence,has also developed in this context,and this article is a sociological study of law on the fault of medical damage based on this premise.Focusing on how to determine the reasonable medical damage fault proof system,this paper attempts to explore the practical logic of medical fault determination through sociological research methods,try to find out some regular problems,and extract some practical wisdom that can be useful for rule reconstruction.In a study of 678 judgments in medical damage dispute cases in Shandong Province,it was found that the first paragraph of article 1222,"violating laws,administrative regulations,rules and other provisions related to diagnosis and treatment norms",became an alternative criterion for the fault judgment standard of article 1221 "failure to fulfill the obligation of diagnosis and treatment corresponding to the current medical level";The standards for medical fault appraisal are disconnected from the level of medical practice,resulting in contradictions between medical institutions and forensic appraisal institutions;The judicial practice of medical fault determination not only shows the reality that judges take a back seat in fault judgment and evade substantive examination under the condition of strong dependence on medical appraisal,but also reflects the changes made by judges to legal provisions in order to achieve substantive justice.Therefore,this paper proposes ideas for the development of the medical fault determination system:improving the appraisal procedure and other functions of the judicial system in a targeted manner;treating article 1222,paragraph 1 differently from items 2 and 3,redefining the nature of item 1;and establishing a system of mitigation of the burden of proof in China’s medical fault presumption system.