(a) the law of the respectable minority
The law refers to the physician can not be based solely on the physician's choice of treatment from the majority of approved methods of treatment and the responsibility of the physician. Physicians must have a high degree of specialized knowledge and technology for diagnosis and treatment, but each physician may have a different opinion on the treatment of the same condition, in this case, to allow physicians to have a relative degree of discretion. Liu in the scope of discretionary learning, because there is no fault to speak of. However, based on the discretion of the learning, especially when the use of physicians unique personal practice, the method, should not violate the common sense of medicine, and by the medical profession is recognized as a reasonable method can be.
In this way, the physician's unique methods or doctrines may be presumed to be negligent if they are not recognized by the medical profession as containing a reasonable basis. Science and referendum is different, and the truth is often in the hands of a few people, therefore, in the medical behavior to the patient's damage, can not because of the majority agreed to take some kind of therapeutic measures to be sure that it is completely correct and do not bear responsibility, also can not be used because of the treatment method is crumb a minority of people to let the minority of people to bear the responsibility, bear in mind that the judgment of the responsibility of the existence of the negligence of its own; as long as the physician to take the As long as the treatment method adopted by the physician does not violate his professional standards, he cannot be found at fault.
(2) The Law of Medical Judgment
The Law of Medical Judgment means that as long as a medical professional makes a decision in accordance with the requirements of professional standards, he or she cannot be held liable for a decision that is later judged to be wrong. A medical practitioner is not liable for damages caused by an honest error in judgment if he or she has exercised the care, knowledge, and skill required by his or her profession when treating a patient.
(C) the best judgment rule
The medical care behavior of the medical practitioner must meet the professional standards of duty of care, knowledge and skill, etc., in addition, some U.S. courts also require that the physician's so-called judgment must be the best judgment, in particular, when the physician is aware of the prevalence of the medical treatment of unreasonable risk, the court does not take the physician's medical treatment behavior The courts do not exempt the physician's treatment from liability on the basis that the physician's treatment meets ordinary standards. It can also be argued that when a physician's professional judgment is higher than the general standard, and the physician knows that the medical treatment required by the general standard is unreasonably dangerous, the court requires a higher duty of care from the physician than the general standard. The court requires the physician to exercise his/her best judgment in order to be exempt from liability. There is a similar requirement in Japanese civil law theory, which is called the duty of best care or complete care.
The law of best judgment is different from a physician's general duty of care. If the physician's best judgment is different from conventional treatment methods, but also increases the safety of treatment for the patient, then this rule is certainly applicable. If the physician's best judgment is not only contrary to the traditional methods of treatment, but also increase the patient's other risks, the court must be very careful when applying the principle, it is appropriate to apply the aforementioned law to increase the flexibility of the physician's treatment. In other words, the rule of best judgment should be applied only when the best judgment treatment does not increase the risk to the patient or when the treatment has been recognized as a respectable minority.
(iv) Urgency of medical treatment and attempts at medical treatment
There is also the question of the urgency of medical treatment and the effect of attempts at medical treatment on it in determining medical negligence.
The so-called urgency of medical treatment means that due to the time constraints of medical judgment, the patient's condition and symptoms can not be a detailed examination, observation, diagnosis, since it is difficult to require the doctor with the usual attention to the same ability. Therefore, the urgency of medical negligence, it becomes the most important conditions to ease the duty of care. Some scholars believe that this is not intended to reduce the duty of care of the medical practitioner, but rather to use the same degree of care as the standard of judgment, but to exempt the medical practitioner from liability when he or she is unable to pay attention due to an emergency. The so-called medical attempts, refers to any medical behavior, although all have the threat of abstraction, medical theory depends on the new drug attempts or skills experiments in order to develop. At this point, there is often a considerable amount of uncharted territory. Doctors have a duty of care in this uncharted territory. Therefore, the doctor in the new medical attempts, in addition to the patient's commitment, but also to the patient's symptoms, physical condition, hospital equipment, the doctor's ability and other necessary experiments and possible dangers, should be carefully considered, and should provide a comprehensive emergency equipment, otherwise, will be unable to escape the blame of the fault.
(E) The Law of Permissible Risk
Or the law of permissible danger, the law of permissible danger. This law was originally the theoretical basis of the new negligence theory. It holds that the mere fact of infringing on the rights and interests of others does not necessarily require punishment, and that in some special cases, the existence of human activities that threaten the interests of the law should be permitted for the sake of social progress, and that medical behavior belongs to this category. In recent times, the development of science and the rapid progress of material civilization have led to significant improvements in human life, but at the same time have increased the risk of harm to human beings and property. Just as the automobile brings convenience and efficiency to human beings, but also brings the frequent occurrence of traffic accidents, the progress of medical science has made it possible to cure the diseases that used to be regarded as terminal, thus bringing joy and hope to the patients and their loved ones; the use of new drugs is also accompanied by the production of side effects. However, medical progress is the result of thousands of repeated experiments and several failures. Therefore, to determine whether the medical act of liability, should consider the application of the law of permissible risk, permissible risk theory has become and the patient's commitment to block the medical act of illegality of another pillar
How to compensate for the occurrence of medical fault
Medical fault compensation calculation standards are as follows:
(a) medical expenses: according to the medical institutions, hospital fees and other receipt of evidence
(ii) lost wages: based on the victim's lost time and income status;
lost time is determined according to the certificate issued by the medical institution where the victim received treatment. If the victim continues to lose time from work due to disability, the time lost from work can be calculated up to the day before the date of determination of disability;
If the victim has a fixed income, the cost of lost time from work shall be calculated according to the actual reduction of income. If the victim has no fixed income, the cost shall be calculated according to the average income of the victim in the last three years; if the victim is unable to prove the average income of the victim in the last three years, the cost may be calculated with reference to the average wage of the employees in the same or similar industry in the place where the court under appeal is located in the previous year;
(c) Nursing care fee: it shall be determined in accordance with the income status of the nursing staff as well as the number of persons to be nursed, and the duration of the nursing care;
Nursing staff If they have income, they shall be calculated with reference to the provisions on lost wages; if the caregiver has no income or employs a caregiver, they shall be calculated with reference to the standard of remuneration for the labor of a local caregiver engaged in the same level of care. In principle, the caregiver shall be one person, but if the medical institution or appraisal organization has a clear opinion, it may refer to determine the number of caregivers;
The period of care shall be calculated until the victim recovers the ability to take care of himself/herself. If the victim is unable to regain his or her ability to take care of himself or herself due to his or her disability, a reasonable period of nursing care may be determined on the basis of his or her age, state of health and other factors, but the maximum period of nursing care shall not exceed twenty years;
The nursing care for the victim after he or she has been determined to be disabled shall be determined in accordance with the degree of dependence on his or her nursing care and in conjunction with the dispensing of disability auxiliary aids;
(d) Transportation expenses: based on the actual costs incurred by the victim and his or her necessary accompanying persons (d) Transportation expenses: calculated on the basis of the actual expenses incurred by the victim and his necessary accompanying persons for medical treatment or transfer to a hospital for treatment. Transportation expenses shall be supported by official bills; the relevant documents shall be consistent with the place, time, number and frequency of medical treatment;
(v) Hospital meal allowance: it can be determined with reference to the standard of meal allowance for the general staff of the local state organs on business trips;
(vi) Nutritional expenses: it shall be determined with reference to the opinion of the medical institution in accordance with the victim's disability;
(vii) Disability compensation: according to the degree of the victim's loss of working ability or disability grade, in accordance with the standard of per capita disposable income of urban residents or per capita net income of rural residents in the previous year in the place where the court under appeal is located;
(viii) Disability aids: calculated in accordance with the standard of reasonable cost of ordinary applicable appliances. If there is a special need for the injury, the corresponding reasonable cost standard can be determined with reference to the opinion of the auxiliary apparatus dispensing organization;
(ix) Funeral expenses: calculated in accordance with the standard of the average monthly salary of the employees of the previous year in the place where the court under appeal is situated in the total amount of six months;
(x): living expenses for the dependants: according to the degree of loss of the ability to work of the dependants, calculated in accordance with the standard of the average monthly consumption expenditure of urban residents and the net income of rural residents of the previous year in the place where the court under appeal is situated. Urban residents per capita consumption expenditure and rural residents per capita annual living consumption expenditure standards;
(xi) death compensation: in accordance with the location of the court under appeal in the previous year urban residents per capita disposable income or rural residents per capita net income standards, calculated in twenty years. However, if the age of sixty years old or older, the age of each additional year is reduced by one year; if the age of seventy-five years old or older, the calculation is based on five years.