| With the development of medical science and the enhancement of People’s awareness of protecting their rights,medical tort cases also increase.Medical tort cases are often characterized by high degree of social concern,complex trial procedures and long handling cycle.Fault is the basic element of medical tort liability,but it is very difficult to identify fault in medical tort cases,which straddles two major fields of medical law.Articles 1221 and 1222 of the civil code provide two standards for the determination of fault,but there are still many problems in the two standards,which are not enough for the accurate determination of medical fault.Therefore,this article takes the medical fault determination standard as the research core,carries on the research to the “ Civil Code ” stipulation medical fault determination two standards.This text content divides into five chapters,besides the first chapter introduction and the sixth chapter conclusion,divides into four parts.The second chapter,the definition of medical fault identification standard in tort liability.This part first explains the basic concepts of the full text,including the concept of medical error,the type of medical error,and clear the scope of this study.Then the author defines 1221 and 1222 articles in the civil code as two standards of medical fault identification,and clarifies the characteristics of the standard of diagnosis and treatment and the standard of medical level.The third chapter,first of all,combined with the legal provisions,analyzes and discusses the double standard theoretical relationship and the confusion situation in practice,and points out that the root of the problem is that there is no clear definition of the double standard theoretical relationship,and the Order of application of double standards is not stipulated.Secondly,according to the present situation,the author analyzes the deficiency of the standard of diagnosis and treatment and the level of medical treatment,the standard of“Standard of diagnosis and treatment” has some limitations because of its unclear scope,too absolute application and hindering the development of medicine.The standard of “ Medical level ” is restricted by the standard of“Diagnosis and treatment standard” because of the undefined factors.The fourth chapter,through the comparative analysis,through the study of the United States“Medical Code of conduct” standards for reference to our“Norms of diagnosis and treatment” standards,the emphases of the criterion of diagnosis and treatment should be changed from the law to the medical behavior.By studying the“Medical standard”of German law,the“Medical standard”of Japanese law and the“Medical standard”of Korean law,we can draw lessons from the“Medical standard”of our country,clear“Medical level”standard of the support basis,influencing factors should be first classified and then subdivided levels.The fifth chapter,in view of the medical malpractice cognizance standard existence question puts forward the consummation proposal.First of all,it should be clear that the“Standard of diagnosis and treatment” standard and the“Standard of medical treatment” standard are parallel in law,and the“Standard of diagnosis and treatment” standard is applicable,the second cognizance of the standard of“Medical level” plays the role of supplement and examination.Secondly,it is divided into compulsory and non-compulsory diagnosis and treatment norms according to the different effect of diagnosis and treatment norms,so as to avoid the absoluteness of application.Again,the scope of diagnosis and treatment standard is defined by restricting the main body of making diagnosis and treatment standard,establishing strict examination system of diagnosis and treatment standard,establishing complete database of diagnosis and treatment standard,and establishing the examination mechanism applicable to the extra-territorial medical regulations.Finally,clear“Medical level” standard of the impact of factors,and factors on the impact of medical level. |
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