Research On Tort Liability Of Not Providing Emergency Medical Treatment

With the development of modern medicine and the improvement of citizens’ awareness of safeguarding their rights,the tort liability of doctors who are lazy in emergency medical treatment has gradually become the focus of attention in theory and judicial practice.However,for the problem of doctors’ laziness in implementing emergency medical liability,academic theory focuses on discussing the legitimacy basis of emergency medical treatment,the protection of patients’ right to informed consent in emergency and the regulation of proxies of close relatives.There is a lack of systematic research on the problem of doctors’ laziness in implementing emergency medical tort liability.In judicial practice,there is no agreement on the basis of the right of claim for negligence in emergency medical tort liability and the judgment standard of the constituent elements of tort liability.The above circumstances will lead to the vague characterization of the behavior of neglecting emergency medical treatment and the phenomenon of different judgments in the same case.Therefore,we should clarify the basis of the right of claim for negligence in emergency medical tort liability and build a tort liability system.This paper intends to use three methods to explore the constituent elements and claim basis of being lazy in emergency medical treatment,analyze the constituent elements of being lazy in implementing emergency medical tort liability,determine the judgment standard of the constituent elements of tort liability,and construct the claim basis system of being lazy in emergency medical litigation tort liability.The behavior of medical institutions neglecting to implement emergency medical treatment refers to the behavior that medical institutions can implement emergency treatment for patients without approval when the clinical conditions meet the conditions specified in article 1220 of the civil code,that is,the patient’s condition is critical and emergency treatment is urgent.At this time,it is impossible to obtain the opinions of patients or close relatives,and the implementation of emergency treatment does not violate the patient’s true will.It can be divided into four types:laziness in obtaining or respecting the opinions of patients,laziness in obtaining the opinions of close relatives,laziness in opening the authorization and approval process or other laziness in carrying out emergency rescue.As for whether medical institutions should bear the responsibility for their laziness in implementing emergency medical treatment,we should first determine the basis of claim right to bear the responsibility.In the relevant provisions,the right of claim for compensation created by paragraph 2 of Article 18 of the interpretation for delaying the implementation of emergency medical treatment cannot be the basis of obligation,while article 1220 of the civil code does not create the liability for tort damage on the basis of the legal obligations of medical institutions and belongs to the incomplete law.Although article 1218 of the civil code has the conditions to become the basis of the right of claim,it can not provide clear guidance for the specific judgment of the constituent elements.These three articles not have the necessary conditions to become the basis of the right of claim.Article 1221 of the civil code belongs to the integrity law,which stipulates that the liability for tort damage has a clear legal obligation basis,and should be used as the claim basis for the tort liability of medical institutions for neglecting to implement emergency medical treatment.As for the constituent elements of neglecting to implement the tort liability of emergency medical treatment,the tort of medical institutions belongs to the omission of failing to timely take emergency diagnosis and treatment measures corresponding to the medical level at that time,including the two situations that the doctor has judged and failed to judge the critical condition of the patient.The judgment of the fault of "failing to fulfill the diagnosis and treatment obligation corresponding to the medical level at that time" should be analyzed by stages and comprehensive factors,In the identification of damage,we should abandon the theory of infringement of expectation right and analyze the personal,spiritual and property damage of patients.For causality,the theory of substitution should be used as the standard for the identification of liability causality,and the theory of equivalent causality should be used as the judgment standard for the causality of compensation scope.