The occurrence of medical damage, it is easy to produce disputes, mainly a division of responsibility, the medical institutions to be responsible for the principle of attribution according to the law.
A, medical damage liability disputes attribution principle is how
Fault liability principle ----- presumption of fault ---- full responsibility
1, according to the "Chinese people's **** and the State Tort Liability Law" Article 54 of the provisions of the patient in the diagnostic and treatment activities suffered damage to the medical institution and its medical personnel are at fault, the medical institutions to bear compensation. responsibility. Therefore, the Chinese people's *** and the state tort liability law on medical damage liability is the principle of fault liability, that is, medical institutions bear civil liability to the medical staff to the existence of fault premise.
2, but in practice, the patient to prove that the medical staff is at fault is more difficult, because the medical institutions have professional knowledge and technical means, master the relevant evidence material, has a strong evidence ability, the patient is in a relatively weak position. In order to balance the interests of doctors and patients, the Chinese people's *** and state tort liability law, article 58 provides: "the patient has damage, due to one of the following circumstances, it is presumed that the medical institution is at fault: (b) hiding or refusing to provide the dispute-related medical records; (c) forgery, tampering with, or destroying the medical record information."
3. The Approval Reply of the Ministry of Health on the Responsibility of Medical Institutions for Not Cooperating with the Technical Appraisal of Medical Accidents [Wei Zheng Fa Fa (2005) No. 28] explicitly stipulates that: "First, if a medical institution violates the relevant provisions of the Regulations on the Handling of Medical Accidents, does not truthfully provide the relevant materials or fails to cooperate with the relevant investigations, which results in the technical appraisal of medical accidents being unable to be carried out, it shall bear the responsibility for medical accidents. which shall bear the responsibility for medical malpractice the degree of responsibility shall be determined in accordance with full responsibility."
Legal basis:
Article 54 of the Tort Liability Law: If a patient suffers damage in diagnosis and treatment, and the medical institution and its medical staff are at fault, the medical institution shall bear the compensation responsibility.
Tort Liability Law, Article 58: the patient has damage, due to one of the following circumstances, it is presumed that the medical institution is at fault: (a) violation of laws, administrative rules and regulations and other provisions relating to the norms of diagnosis and treatment; (b) concealment or refusal to provide the dispute-related medical records; (c) forgery, tampering with or destroying medical records.
Second, the medical damage liability elements
1, the medical institutions and medical personnel of the diagnosis and treatment
Diagnosis and treatment behavior is the premise of medical tort liability. Diagnosis and treatment refers to the medical institutions and their medical personnel with its medical knowledge, professional technology, equipment and drugs and other means, for the patient to provide emergency treatment, inspection, diagnosis, treatment, nursing, health care, medical beauty and the logistics and management of this service to maintain the patient's life and health of the activities necessary.
2, the patient's damage
Only with the damage may be compensated, no damage is no compensation.
3, diagnosis and treatment behavior and the consequences of damage between the existence of causal relationship
causal relationship refers to the harm caused by the behavior and damage caused by the relationship between.
4, the medical institution and its medical personnel fault
The principle of fault liability is the main principle of tort liability law, fault is a kind of blameworthy psychological state, manifested in two forms of intent and negligence, in medical infringement, mainly refers to negligence. Medical personnel whether there is fault, the judgment standard is whether it should reach the duty of care. According to the provisions of article 57 of the tort liability law, if the medical personnel in the process of diagnosis and treatment did not fulfill the medical duty of care corresponding to the level of medical treatment at that time, it constitutes fault. According to the provisions of article 58 of the tort liability law, one of the following three circumstances, the patient has damage, the medical institution is presumed to be at fault:
(1) violation of laws, administrative regulations, rules and other relevant diagnostic and treatment norms;
(2) hiding or refusing to provide the dispute-related medical records;
(3) forgery, tampering with or destroying the medical records. .
Legal Objective:Article 1218 of the Chinese People's **** and National Code If a patient suffers damage in the course of diagnostic and treatment activities, and the medical institution or its medical staff is at fault, the medical institution shall bear the liability for compensation. Article 1221 of the Chinese People's **** and National Code: If a medical personnel fails to fulfill his or her duty of treatment corresponding to the level of medical care at that time in the course of medical treatment, and causes damage to the patient, the medical institution shall bear the liability for compensation.