Is avoidance an affirmative? Are avoidances in healthcare contracts likely to happen?

In recent years, there has been a significant increase in medical litigation, both in number and in the amount of damages awarded. This is due, on the one hand, to the increased awareness of patients' rights; on the other hand, to the increased democratization and highly educated nature of society, which has nearly obliterated the gap in identity and status between experts and the general public.1 In terms of judicial practice, the majority of medical lawsuits have adopted the tort model of imputing liability to health care providers; however, the medical relationship2 is primarily a contractual one, and so pre-existing relationships that are prima facie premised on the absence of those relationships The inadequacy of dealing with tort jurisprudence without these relationships probably cannot be denied;3 at the same time, dealing with medical litigation in terms of breach of contract would also make damages more reasonable. Therefore, I believe that treating medical litigation through breach of contract or not will be the trend going forward. I try to elaborate on the rationality, particularity, and content of the existence of medical contract in this paper, and put forward the ways to regulate the defects of medical contract. I. The contractual nature of the medical relationship usually the medical relationship 4 in the end is not a contractual relationship? So far there is still no definitive conclusion. Against the medical contractual relationship, the author summarized, there are mainly the following points: (a) China's contract law applies the principle of no-fault liability, that is, as long as there is a breach of contract, the breaching party should bear the responsibility for the breach of contract. Specifically to the medical activities, the patient and the medical institution's consent is to get rid of the disease, save life, if allowed in the medical damages disputes in the use of breach of contract; then, in the trial, the court does not need to review whether the medical behavior is negligent, whether the medical staff to do their legal obligations, as long as the medical behavior fails to achieve the therapeutic effects of the medical institution should bear the liability. However, the medical behavior is a high-risk activities, in the process of medical treatment often produce results inconsistent with the patient's expectations, allowing the patient to breach of contract lawsuit is unfair to the medical institution. (ii) Damages for breach of contract are limited to property losses, and are only payable by the breaching party for losses that the party could reasonably foresee. Tort damages are broader in scope and include compensation for both physical and moral damages; therefore, the application of tort is more conducive to the protection of the patient's interests from this point of view. (3) "Cure the disease" is the doctor's legal obligation, not a contractual obligation. The damage caused by a medical act infringes on the patient's absolute rather than relative rights, which is a tort in the true sense of the word. (d) medical relationship between the doctor and the patient information is not equal, the patient can only passively accept the doctor's treatment program, so that the doctor and the patient are not equal contractual relationship. (e) Due to the limitations of medical ethics, hospitals cannot refuse patients in general, which contradicts the principle of freedom of contract. The author believes that the above points against the reason is not unreasonable, but are questionable. The first point talks about the application of the breach of contract on the medical party unfair. Here the objector misunderstands the specific meaning of the agreement between the two parties in the medical behavior. If the medical relationship is regarded as a contractual relationship, it is to cure the injury or disease for the purpose of giving careful attention to the implementation of the appropriate diagnostic and treatment behavior itself for the purpose of the "debt of means", rather than "debt of result". Indeed, both the doctor and the patient *** agree to wish for the patient "to get rid of the disease and pain", but this is not the content of the "agreement"; medical contract between the two sides of the "agreement" actually refers to the physician The actual "agreement" in the medical contract refers to the doctor's obligation to exercise reasonable care, rather than the expected results of the treatment. Whenever a doctor violates his duty of care, he can be found in breach of contract, and be held liable for breach of contract. This and the tort elements of the tortfeasor's subjective fault content is exactly the same, and did not increase the responsibility of the doctor. the second point of the compensation for breach of contract is narrower than the tort, and therefore the application of tort is more conducive to the protection of patients. This is indeed a shortcoming in the application of the "breach of contract doctrine" to medical litigation, and I will suggest ways to improve it in Part VII, so I will not repeat them here. The third argument of the opponents is that the doctor's treatment is a legal obligation, and the violation of such obligation causes damage to the patient in violation of the absolute right rather than the relative right. From the "medical practitioners law" and other laws, doctors do have a legal obligation to treat the patient; However, when the doctor and patient after the contracting process, this obligation is changed to a contractual obligation; At the same time, for the doctor, is also a mandatory contractual obligations. Therefore, medical malpractice or error violates the patient's relative rights rather than absolute rights. As for the medical behavior may also cause damage to the patient's inherent interests, which can be completely with the performance of the "harm to pay" to be resolved. The fourth reason is that the information between the doctor and the patient is not equal, and therefore the status is not equal. The author believes that this causal relationship can not be established. The social division of labor makes each of us ignorant in some sense, and the role played by contracts is precisely to regulate the resources and information between members of society. As in most contracts of entrustment, it is the lack of specialized knowledge on the part of the principal that leads to the entrustee's handling of the matter. The reason why there is the view that the status of the two parties is not equal, is due to China's long-term planned economic system, the formation of hospitals, patients "seeking medical treatment" of the deformed situation. Accompanied by the development of market economy, the doctor-patient relationship is bound to shift from "active - passive" type to "both parties involved in the type of" 5 equal relationship. The fifth point involves the special features of the medical contract that are different from the general contract, but it does not shake the contractual nature of the general medical relationship. "The essence of a contract is the agreement of meaning." In the general medical relationship, both the doctor and the patient in order to achieve a **** the same purpose - cure the disease, and the implementation of medical behavior. At the same time, the doctor and the patient are in the interdependent, *** same participation in the equal status. Therefore, the medical behavior of the two parties to form a contractual relationship. II. The Characteristics of Medical Contracts "Contracts, as a link to market subjects and the legal expression of market relations, its mechanism of action and the market and market mechanisms are closely linked together." 6 It follows that the vast majority of contracts are aimed at obtaining greater economic benefits. The medical contract is a personal nature of the contract; the so-called "the purpose of the pot is to help the world rather than profit", profit is not the primary purpose of the medical contract. Therefore, the medical contract is different from the general contract of the special place, mainly reflected in: (a) the contracting process, the limitations of the autonomy of meaning Meaning autonomy refers to the will of the person can be based on its own law to create their own rights and obligations, the parties to the will not only is the source of rights and obligations, but also the basis of its occurrence, the will of the parties is not only a right or obligation, but also a right or obligation. The will of the parties is not only the source of the rights and obligations, but also the basis of its occurrence; in the contract, all debts, only according to the will of the parties to the establishment of the reasonableness, otherwise, it is the law of the "tyranny of the tyranny of the".7 However, the autonomy of the meaning of the absolute, it is bound to be subjected to a variety of limitations. In the medical contract, this limitation is mainly reflected in two aspects: First, for the medical side, the doctor's medical behavior must be regulated by medical morality or medical ethics. "The treatment of patients is the vocation of doctors", doctors do not have the freedom of choice whether to contract or not; public law also makes the conclusion of medical contracts as the obligation of the medical side. Therefore, the medical contract is a mandatory contract.

On the other hand, for the patient, especially patients suffering from acute and serious illnesses, the desire to survive and the lack of medical knowledge led to the conclusion of the medical contract of the meaning of the false. "The affirmative nature of the patient's answer is conceivable when a patient whose life is in danger is stopped at the door by a doctor holding a fixed-form contract and asked whether he is willing to accept the terms of the contract. On its face alone, this acceptance is also voluntary. But it is a distorted voluntariness." 8 There is no guarantee that a patient suffering from an ailment will not "rush to the doctor's office." At the same time, the format of the medical contract and the disparity between the strength of the doctor and the patient also determines the patient's acceptance of the medical contract helpless. (b) the performance process, the risk of medical behavior medical behavior is the direct object of the physiological or psychological in the abnormal state of the organism, the object of the special decision of the medical behavior of the risk borne by the civil behavior is far greater than other. First of all, medical behavior in the implementation of the process will inevitably produce different degrees of infringement on the human body. Whether it is a scalpel cut the body or the side effects of medication, strictly speaking, is a tort. Although you can use the "permissible risk" defense, but the doctor is not careful, "permissible" medical behavior will become "unforgivable" medical malpractice. Second, there are no two individuals in the world who are identical. Individual differences exist to varying degrees between people. Differences in receptors make the response to the same medical treatment different from the response to the same medical treatment different from the response to the same medical treatment different from the response to the same medical treatment different from the response to the same medical treatment. Some individual differences can be avoided through prior detection, while others are difficult to prevent. Once again, the development of medical practices always follows the evolution of the disease, just as the development of drugs to treat SARS only began with the emergence of SARS. The medical profession is challenged at every turn by a variety of difficult diseases.

III. Nature of Medical Contracts A medical contract, as a contract of service, is a contract for the provision of labor by a physician. On the nature of the medical contract, the doctrine is different. There are commission contracts, quasi-commission contracts, contracts of employment, contracts of contract, and so on. The author believes that, due to the diversity of means in the treatment of disease and the complexity of the process, involving the diagnosis of the disease, the implementation of surgery, the sale of drugs, laboratory tests, inspections, etc.; At the same time, the characteristics of the medical contract described earlier also makes the medical contract and the traditional famous contract differences. Therefore, the medical contract is difficult to apply some kind of famous contract, should be more appropriate as a comprehensive nameless contract. IV. The formation of medical contract The formation of the contract refers to the contracting parties for the expression of meaning and reach a state of agreement. It describes the contracting parties since the contact, negotiation until the process of reaching a consensus.9 According to the Taiwan scholar Wang Zegian's point of view, the traditional contract formation model has three: 1. offer and promise the same expression of meaning, 2. meaning to realize, 3. staggered offer. For the formation of medical contract using what mode, the author believes that can not be generalized. Medical contract can be subdivided into "first aid, epidemic prevention, treatment, health care, correction" five types. Among them, "first aid" refers to the medical institutions to the hospital for the high-risk patients directly to the rescue measures, often the first rescue, after the procedures, the urgency of the situation does not allow the act of the contracting process before the experience. Therefore, can be regarded as customary or the nature of the event through the realization of the meaning of the establishment of the medical contract. "epidemic prevention" behavior is a kind of public authority, the parties have no autonomy, let alone through the contracting process. "seeking treatment, health care, correction" of these three kinds of medical contracts and the formation of ordinary contracts are not very different, subject to the "offer - promise "Finally reached the agreement of the expression of meaning. Here a question arises: this contract, what is the offer? What is the promise? For this problem academics are still controversial, some scholars believe that the patient's registration behavior is an offer, the medical side of the acceptance of registration constitutes a commitment.10 But at this time the problem is: one. According to Article 14 of the Contract Law, the offer must be specific and clear. The patient due to professional limitations, the content of the offer can not be determined, only a general request for the doctor for its treatment, so "it seems that should not be considered to have made an offer".11 Second. When a patient makes an offer, the other party, the medical institution, should have the right to choose between acceptance and rejection. In practice, however, the provider does not enjoy this right. Can a promise that lacks autonomy still be a promise in the true sense of the word? Some scholars believe that in the contracting process, the doctor for the offer, the patient to the hospital registration for the commitment, the doctor-patient relationship was established in the patient registration.12 This view is far-fetched in the usual contract formation process, the offer for the active side, while the commitment is more passive, because the commitment is only on the acceptance of the meaning of the offer.13 For the medical contract, it is the first to the patient to the hospital due to disease, the doctor can only register the patient for the hospital, the medical contract, the patient can not be accepted. , the medical party can only register and treat the patient; therefore, it reverses the active and passive side. In the author's opinion, with the social and economic development, the traditional view of contract law has changed, "Contracts are by no means entered into by means of offer and promise without exception. Of course, when the offer is committed, the parties need to express the necessary consent. But it is sufficient if any other conduct on the part of the parties sufficiently demonstrates their willingness to be bound by the contract. For a long time it has not been necessary in practice that consent must be written into offers and promises at all, since the parties enter into the contract face to face." 14 From this, it is clear that the identification of the offering and promising parties in the formation of a healthcare contract is not important; it is only the fact that the formation of the contract stems from the parties' consent and, in turn, their willingness to be bound by the contract that is the essence of the contract. As Taiwan scholars Chen Ziqiang said "must be to the contract is due to the offer of commitment to the framework of unanimity of meaning to understand, it is difficult to escape from the ridicule of cutting the foot to fit the shoe." 15 V. The Content of the Medical Contract The content of the medical contract, from the perspective of the contractual relationship, refers to the rights and obligations of the doctor and patient. They can either be agreed upon by both parties or derived from the law directly. As the rights of one party and the other party's obligations are basically equal, so the author only elaborates on the obligations of the doctor and the patient to illustrate the content of the medical contract. (a) the obligations of the doctor: 1. Diagnosis and treatment obligations: medical knowledge and technology, diagnose the patient's condition for the patient and then apply the appropriate treatment. This is the main payment obligation of the doctor. Specifically, including the right to prescribe, diagnosis, disposal. 1. Explain the obligation In a broad sense, the medical behavior are invasive. In order to make its behavior has the legitimacy, must obtain the patient's "informed consent". This requires that the medical treatment should be invasive scope, degree and possible harmful consequences of medical behavior to the patient. At the same time, as equal parties to the contract, the doctor is also obliged to introduce the patient and his family to the condition. However, since the patient's understanding of the condition may have a negative impact on the treatment, Article 26 of the Practitioners Law specifically stipulates that the medical practitioner should take care to avoid adverse effects on the patient. 2. Obligation of referral Due to limitations in equipment, technology and other limitations that do not provide the patient with appropriate treatment, the hospital shall recommend that the patient be referred to another doctor. 3. Obligation of confidentiality Article 60 of China's Contract Law provides that "the parties shall follow the principle of good faith, and fulfill the obligation of notification of confidentiality and other obligations in accordance with the nature of the contract, its purpose, and the customs of the transaction." The patient's condition involves privacy, and the medical party shall not disclose it to others without permission. However, the focus of the dispute here is: how to resolve the conflict between the hospital's internship teaching and the performance of the medical contract?16 The author thought that the patient's right to privacy should still be put in the first place, and that if an intern is involved in the medical act, the medical party should consult with the patient in order to obtain the patient's consent. 4. The obligation to protect the medical party for the patient in the hospital to receive treatment in the course of the patient and his family members should provide protection of personal and property safety. 5. Custodianship obligations Whether it is for the settlement of medical disputes or the patient's continued treatment, the importance of the medical records are unquestionable. Therefore, China's "medical institutions regulations" article 53 provides: medical institutions of outpatient medical records retention period shall not be less than 15 years; hospitalization medical records retention period shall not be less than 30 years. 6. Obligation of inaction out of the law or professional ethics constraints, the medical staff also has a "red packets", do not exaggerate the condition of the obligation of inaction. (b) the patient's obligations: 1. The obligation to pay medical expenses based on the medical contract of the equivalent of the compensatory nature of the medical services, the patient in the acceptance of medical services provided by the medical party, should also bear the corresponding obligation to pay for the price. 2. The obligation to cooperate with the treatment medical behavior is a kind of relies on the interaction between the doctor and the patient in order to achieve therapeutic effect of behavior. Patients and doctors are in a "collaborative relationship", the patient should cooperate with the doctor's diagnosis and treatment behavior, such as truthfully inform the symptoms, take medication on time. Strictly speaking, this is a kind of unreal obligation, that is, the right person shall not request the fulfillment, the violation of which also does not occur damages liability, only to make the burden of the obligation of the party to suffer the rights of the impairment or loss of the disinterest.17 In addition to the above basic obligations, in the specific medical contract, the patient and the doctor can also be agreed upon. If the patient in the case of the condition is not cured insisted on discharge, the two sides signed "automatic discharge, the consequences of their own" exemption clause, which changes the distribution of obligations between the two sides, reduce the responsibility of the medical side. six. The purpose of the legislation of the medical contract the doctor-patient relationship is attributed to the contractual relationship and through the law will be solidified in order to reverse the inequality between doctors and patients in our country for a long time, so that the law to fully exercise its role as a social regulator, and then more and more disputes this year to seek a social cost of the higher efficacy of the channel. Mainly embodied in the following three aspects: (a) through the freedom of contract so that damages tend to be reasonable. This year the sharp increase in medical disputes and even litigation has led to a strange phenomenon - both sides have become weak. On the one hand, the patient complained that the hospital is condescending, the status of the two sides, on the other hand, the medical side of the patient's huge compensation for the suffering. The author thinks that the fundamental reason for this abnormal situation is that the doctor-patient relationship is not really realize the contractualization. Both sides can be completely in the medical contract on some specific matters for agreement. For example, the medical damages that liquidated damages set in advance, so that it is limited to the hospital's affordability. At the same time, due to the aforementioned medical behavior of high risk, in the medical activities often appear accident, and most of them are due to scientific and technological development of the limitations caused by the medical party to assume responsibility is obviously unfair. The contract law stipulates that the loss caused by the breach of contract shall not exceed the breach of contract party to enter into a contract foreseen or should be foreseen due to the violation of the contract may cause the loss; through the contractualization can make this problem can be solved. (ii) through the medical contract will be the rights and obligations of doctors and patients legalization. Nowadays, the rights and obligations of doctors in China are mostly limited to some internal regulations, administrative regulations and its legal effect has limitations, and there are inconsistencies between each other. Based on this, we need to medical contract as a kind of famous contract model, the doctor and the patient's rights and obligations in the medical behavior clear. This will help the settlement of medical disputes is especially conducive to protect the interests of patients. 3. Liability in case of damage. Medical contract relationship occurs between the medical practitioner and the patient, if the third party causes the medical practitioner can not fulfill the obligations according to the contract, according to the principle of relativity of the contract, the law requires that the medical practitioner should firstly be responsible for the patient, and then to the third party to recover. This will help the patient's damage can be repaired in time. VII. Inadequacy of medical contracts and coping strategies From the legal doctrine and doctrines of various countries, basically tend to adopt tort liability rather than breach of contract liability to seek compensation from the medical side. The main reason is that tort liability including moral damages, more conducive to protect the interests of patients. For this problem, the author thought that we can try to selectively compensate the mental suffering of the parties in the contract law. The British contract law has set up three kinds of circumstances by the breach of contract party to bear the compensation for moral damages: First, the purpose of the contract is to provide peace and happiness enjoyment; Second, the purpose of the contract is to relieve the pain or trouble; Third, the violation of the contract brought about by the life of the inconvenience directly caused by the mental anguish. The breach of a medical contract is characterized by a combination of all three of these situations. Because of the breach of contract patients suffered both mental and physical pain, so I thought the introduction of mental damages in the medical contract can better reflect the compensatory function of liability. Secondly, the establishment of the medical contract may cause "abusive litigation". This needs to be clear that the medical contract is a means of debt rather than the result of the debt, whether the purpose of the treatment is achieved does not measure the performance of the contractual obligations, the standard should be whether the doctor in the process of treatment of the duty of reasonable care of the expert. Finally, medical contracts are established to protect the interests of both parties, especially the patient. If the medical party because of the fear of liability for breach of contract and dare not boldly adopt risky treatment, obviously contrary to the legislative intent. The way to solve this problem lies in the insurance mechanism to the medical side of the high risk spread to the whole society, so that the patient in the damage can be reasonably compensated, at the same time, the medical side will not be afraid of.

Conclusion: medical relationship as a contractual relationship, the reason why most of them take the tort theory to be resolved, mainly in order to protect the interests of patients to a greater extent. With the development of contract theory, the difference between breach of contract and tort is shrinking; I think it is possible to improve the contract system, with the contract law approach to deal with medical litigation, in order to achieve both "prevention" and "sheep and make up for" the best! The effect. 1 Kamikawa Dotaro, "Germany's expert liability", in Liang Comet, edited by the civil law jurisprudence and doctrine of the study two, the national administrative college press, 330-331 pages 2 medical relationship refers to the physician by the patient's entrusted or for other reasons, the implementation of diagnosis, treatment, etc. The formation of legal relations. The legal relationship formed. Due to the complexity of medical behavior, medical relationship is also manifested in various forms, can be subdivided into "first aid, epidemic prevention, treatment, health care, correction" five categories. Among them, first aid and epidemic prevention is based on professional ethics or social interests and by the state public power to intervene in compulsory behavior. By seeking treatment, health care, correction of three mainstream medical behavior established by the medical relationship is based on the consent of both parties a contractual relationship. 3. Shimo Mori Ting, "On the Legal Composition and Proof of the Civil Liability of Experts," in Liang Comet, ed. Civil Law Jurisprudence and Doctrinal Studies II, National School of Administration Press, 321 pp. Health care", "correction" of the three main medical relationship 5. Liu Jingwei, Li Maonian, "doctor-patient relationship law" 6. "Corbin on the contract", Encyclopedia of China Publishing House, 158 pp 7. Yin Tian, Modern French Contract Law, China University of Political Science and Law Press, 45 pp. 8. Jiang Ping, Civil Law, China University of Political Science and Law Press, 600 pp. 9. Cui Jianyuan, The Law of Contract, 34 pp. 10. Liu Jingwei and Li Maonian, Doctor-Patient Relationships in Law, 11. (Taiwan) Wu Jianliang, Physicians and the Law of Contracts. Wu Chien-Liang, "Legal Analysis of the "Medical Relationship" between Physicians and Patients", Master's Thesis, Soochow University, 1994, 10 pp. 14. Heinkertz, European Contract Law, Law Press 2001, pp. 22-23 15. Chen Ziqiang, The Establishment and Entry into Force of Contracts, Law Press, pp. 74 16. There was once an incident in which a patient was undergoing an abortion procedure in the presence of a few interns. The patient took the hospital to court for invasion of privacy.