Legal analysis: the health and safety of life, the law is to give special protection, and from the perspective of the overall interests of society, so in the medical contract exemption clauses must strictly follow the provisions of the law, otherwise invalid. Today, I will take you to understand the medical contract exemption clause is how to stipulate.
A medical contract exemption clause
About personal injury can not be exempted from liability, should be absolute, there is no difference between light and heavy. In practice such exemptions often appear in the following four forms:
1, all exemptions. That is, the parties agreed in advance that the future victim to give up the future should be responsible for any compensation request. This exemption clause in the employment contract is most common.
2, limitation of liability. That is, the parties agreed in advance for future personal injury compensation in a particular way or not exceed a certain amount of limited compensation. Current medical contracts often have such clauses.
3, limitations on the duration of the claim. That is, it is agreed in advance that the future victim must be within a certain period of time to make a request for compensation for personal injury, no longer enjoy the right to request compensation. This kind of exemption clause does not directly exempt from liability for the appearance, but to limit the request period constraints on the party's right to request, so as to avoid the regulation of the law.
4, the establishment of a fixed amount or mode of compensation. That is, agreed in advance in the event of personal injury liability, the responsible party to a fixed amount of money for compensation, the shortfall will be exempted or a fixed mode of compensation, and according to the relevant provisions of the law according to the actual compensation.
The above four forms of exemptions, in judicial practice, should be recognized in accordance with the provisions of the contract law is invalid.
Second, what is the disclaimer
Disclaimer refers to the parties agreed to exempt or limit their future contractual liability provisions. Disclaimer is often written by a party to the contract or form of contract, as an explicit or implicit offer, in order to obtain the commitment of the other party, so that it has legal effect. In terms of its original meaning refers to the parties to the contract in the conclusion of the contract or form contract provider to provide a form of contract, in order to exempt or limit the responsibility of one or both parties to the establishment of the provisions. Therefore, the exemption clause to the meaning of the offer, in order to limit or exempt the future liability of the parties for the purpose of civil law.
While it is said that the contract is the result of the autonomy of the parties, the most attention to the true meaning of the parties, but for the protection of the weak considerations, as a relatively strong hospital side of the medical contract in the corresponding exemption provisions must comply with the mandatory provisions of the law. The above is a small amount for you to organize the medical contract exemption clause is how to stipulate the content, I hope to help you.
Legal basis: "the Chinese people **** and the State of medical malpractice exemption regulations" Article 33 provides for six kinds of medical malpractice does not belong to the situation, as the legal exemption of the medical party. Based on the controversy in practice, how to understand and apply the above provisions, the author believes that there is still room for discussion.
One, in an emergency to save dying patients and take emergency medical measures resulting in adverse consequences
Two, in medical activities due to the patient's condition is abnormal or the patient's special physical condition and the occurrence of medical accidents
Three, in the existing medical science and technology, the occurrence of unforeseen or can not be prevented by the adverse consequences of the
Directly, the blood transfusion no fault Infection resulting in adverse consequences
V. Delayed diagnosis and treatment due to the patient's reasons resulting in adverse consequences
VI. Force majeure resulting in adverse consequences