Keywords: medical fault, duty of care, degree of negligence, the principle of restitution
Overview of medical fault
(a) the meaning of medical fault
Fault is the core of the law of torts, is the perpetrator of the law should be responsible for an important basis for the responsibility of a certain degree of fault based on the responsibility of the victim to bear the corresponding responsibility for damages. Medical fault is named as the tort law in the process of medical activities regulated by the doctor, the patient or the doctor and the patient in the process of the fault problem, and the tort law in the fault has most of the same aspects, there are some aspects of the difference (such as the degree of fault and responsibility, the burden of proof allocation, etc.).
Medical fault includes both intentional and negligent forms, but with negligence as the main form. [1] The Regulations on the Handling of Medical Accidents only stipulate "negligence", without mentioning "willfulness". The author believes that the negligent are responsible, then more serious than the negligence of the willful party should also bear the corresponding legal responsibility. In judicial practice, most of the medical negligence, few medical willful. Judicial organs in the commission of judicial appraisal are in the form of medical fault application, the theory also often regard the two as equal to be discussed. [2]
(ii) the characteristics of medical fault
Medical fault compared with other aspects of the concept of fault, the main features are as follows: first, the medical fault problem is mainly concerned with the medical activities of the Chinese medicine side (including medical institutions and medical personnel), the patient or the doctor and the patient's fault problems. Secondly, medical and health management laws, regulations and rules for the medical duty of care has more detailed provisions; as long as the medical practitioner fails to fulfill its legal duty of care, it is considered to be negligent. Third, the determination of medical negligence is related to medical ethics. Traditional medical activities, due to the lack of laws and regulations for the duty of care for the clear provisions, with the help of medical ethics to the physician's behavior constraints; a lot of medical ethics has risen to the physician's legal duty of care. Fourth, the difficulty of proving medical negligence. Because of the medical activity is extremely professional, of course, with its risk, uncertainty, ordinary patients want to prove the medical negligence is very difficult, so the allocation of the burden of proof in the medical damages litigation implementation of the burden of proof reversal of this special rule.
Two, the medical fault and the degree of negligence and responsibility
(A) fault determination standards and specific methods
1, determine whether the medical negligent behavior of the objective criteria - duty of care
Whether the medical practitioner to perform their due diligence duty of care is to determine the objective standard of medical negligent behavior, it is divided into a specific Behavior of the objective criteria, it is divided into concrete and abstract standards. [3] The duty of care for each medical act stipulated by law and regulations is the specific standard for judging medical negligence. The medical activities of the medical practitioner to the patient, whether or not to achieve its qualifications corresponding to the medical standard, whether or not to meet the corresponding professional requirements of the attention, knowledge and skills, is to judge the abstract standard of medical negligence behavior.
Medicine in the diagnosis and care behavior, there are laws and regulations, behavioral regulations, departmental regulations and diagnosis and care norms clearly stipulated for the specific content of the obligation of care for the medical profession, is to determine whether a specific medical behavior of negligence basis. Duty of care according to different types of medical behavior can be broadly divided into: general duty of care and special specific duty of care. The former includes: the diagnosis process of duty of care, the treatment process of duty of care, the surgical process of duty of care, the injection process of duty of care, blood transfusion process of duty of care, radiation therapy process of duty of care, anesthesia process of duty of care, the transfer of medicine in the process of the duty of care, nursing process of duty of care, etc.; the latter includes: the duty of care, the obligation to refer to the doctor, the obligation to ask the doctor Duty of care in the process of anesthesia.
At the same time, as a judgment of medical negligence, there are abstract standards corresponding to the specific standards, that is, to determine the general degree of attention to medical behavior should have the standard, according to the standard does not reach the degree of attention, the behavior of negligence. [4] general attention to the standard is the Japanese Matsukura professor put forward "medical standard", in the United States called the standard of professional behavior of medical personnel, that is, medical personnel for the medical behavior, its knowledge, attention to the degree of technology and attitude, should be in line with the standard, it is the medical profession recognized by the public medical standard. In the absence of laws, regulations or norms and other clear provisions, should be based on specific medical behavior occurs when the medical standard of clinical medical practice, that is, the general medical professional standard, as a benchmark for determining the duty of care of medical actors.
Medical standards as a benchmark for the determination of medical negligence has been established, but still has its own limitations, can not solve all the practical problems. The meaning of medical standard is not clear and consistent, medical standard as a normative, standard concept is too much emphasis on the practice of medical level and too much emphasis on the popularity of the obligation to study medical technology is not enough to emphasize, so that the scope of responsibility of the doctor is too narrow. At the same time, the results of medical treatment are quite unpredictable, and doctors cannot be held liable simply because the results of treatment are ineffective or unfortunate. [5]
"Medical standard" although reveals the basic principles of judgment of medical negligence, but in the judgment of specific medical negligence should also take into account the specialization of medical treatment, geographical, emergency and other characteristics, as well as the medical environment, the doctor's individual factors, and reasonable use of the "permissible danger" law, the medical treatment, the doctor's responsibility is too narrow. Danger" law, the medical negligence of comprehensive judgment, in order to not only protect the legitimate rights and interests of patients, but also not to restrain the medical for the active exploration of disease treatment, not only to ensure the justice of the law, but also to promote the healthy development of medicine, so that the two to achieve a reasonable balance. (1) Medical professionalism, i.e., the physician should reach the general medical standard of the same professional field, and the standard of experts should be higher. Medical standards only for the judgment of negligence provides an abstract standard, but the reality of the medical situation is based on the increasingly developed technology, the division of labor is becoming more and more specialized, it is difficult to find a technology can be uniformly applicable standards, so in the judgment of negligence must take into account the factors of medical specialization. (2) Medical urgency, i.e., the patient needs urgent treatment due to an emergency, the physician in a relatively short period of time to judge, choose the means of treatment, the law on the physician in the degree of attention is usually lower than the general medical situation. Since the level of care is lower than when there is sufficient time, negligence is usually not considered to exist if there is no serious error in diagnosis. Medical urgency is considered to be "the most important element of the duty of care to mitigate" and is a specific application of the law of "permissible jeopardy". [6] (3) Medical locality, which includes the difference between general hospitals and small hospitals, and the difference between economically developed areas and remote areas. Different regions and levels of hospitals, medical equipment, materials and talents and other medical resources, there are big differences, so the level of physician practice hospitals and geographic differences, the duty of reasonable foresight requirements are different, should be based on the specific situation to make the two in the degree of attention to reflect a reasonable difference. (4) the limit of medical damage, that is, medicine is still in the stage of empirical science, medical activities of high risk and uncertainty, the patient's disease can not be cured, even if the medical equipment is more advanced, the management of hospitals, and more sophisticated medical skills will be more or less to the patient side effects or complications. These are due to the limited nature of human understanding of the decision, is reasonable medical damage, should not be based on this hospital negligence.
2, judging the specific method of medical negligence
(1) whether the violation of the "duty to inform" (also known as the "duty to explain") refers to the medical party must be the condition of the disease, treatment, treatment of the accompanying dangers and the process of treatment, convalescence, precautions and so on. The "duty to inform" (also referred to as "duty to explain") means that the medical practitioner must explain and instruct the patient or his/her close relatives about the condition of the disease, the method of treatment, the risks associated with the treatment, and the methods of treatment and precautions to be taken during the treatment process, with the aim of obtaining the patient's consent or avoiding the foreseen undesirable results. However, in the case of emergency, or in the case that the instructions will have an adverse effect on the treatment of the disease, and in the case of special provisions of the law, the failure of the medical practitioner to fulfill the obligation to give such instructions shall not be considered as negligence.
(2) Whether to obtain "informed consent" means that the medical practitioner, after making a diagnosis and treatment plan for the patient, must provide the patient with truthful and sufficient information, including diagnostic conclusions, therapeutic decisions, forecasts of the condition, and the cost of treatment, in particular, the nature of the treatment plan, its effect, basis, damage, risk, unpredictability, and other alternative treatment options. Accidents and other alternative treatment options and their advantages and disadvantages and other information, so that the patient or family members after careful consideration of their own choices, and in a corresponding way to express their willingness to accept or reject a certain treatment plan and commitment; in the patient's clear commitment before finalizing the implementation of the treatment plan confirmed by the patient.
(3) whether the violation of the results of the "duty to foresee" refers to the medical personnel should foresee the possibility of their own medical treatment measures may occur or other risks of damage, (such as the surgeon should foresee: preoperative diagnostic uncertainty; the complexity of the surgical process; the possibility of temporary changes in the operation; uncertainty about the outcome of surgical treatment; the possibility of postoperative complications, etc.). Whether or not a detrimental outcome occurs is essentially a matter of chance, and the higher the chance of occurrence, the greater the degree of attention that should be paid. How this is judged should be based on scientific soundness.
(4) whether the violation of the result of the "duty of avoidance" refers to the medical staff in the process of diagnosis and treatment, should strive to avoid the use of medical treatment measures to the medical treatment of the consequences of damage or other harm. If the medical practitioner foresees that the medical treatment may bring harm to the patient, the medical practitioner should abandon the medical treatment in order to avoid the occurrence of the harmful consequences. If it is necessary to use the medical treatment for the purpose of saving the patient's life or treating the disease, it is necessary to increase the level of attention and take the necessary safety measures.
(5) whether the violation of the "obligation to refer" means that the medical staff in the patient's disease is outside the field of expertise or complexity of the condition beyond the ability of the medical practitioner, the medical practitioner should also make the referral instructions of the obligation to state, as well as the obligation to assist the patient to the safe and timely transfer to the hospital in a position to do so. The obligation of referral includes the obligation of referral instructions and the obligation of referral transportation.
(II) Understanding and Classification of Degree of Negligence
In traditional civil law theory, negligence includes negligence and slackness. The behavior of the results of their behavior, should have foreseen or could have foreseen but did not foresee, for negligence; the behavior of the results of their behavior although foreseen but gullible can be avoided, for slackness. Negligence and slackness, are negligence, are the actor should be responsible for the duty of care of negligence or slackness. As China's Taiwan scholars put forward as: "negligence, the actor for their own behavior, the result of a certain, such as considerable attention, can be avoided, and lack of attention to the psychological state." Specifically to the medical negligence behavior, the general negligence is divided into three levels, namely, gross negligence, abstract light negligence, specific negligence. Gross negligence is defined as a complete lack of care, "a lack of skill or attention to an alarming degree." [7] Failure to exercise such care constitutes gross negligence when the medical unit's conduct is so obviously unlawful and detrimental to others that even a negligent person could have avoided it. Minor negligence in the abstract means that the medical facility lacked the care of a "good father." A good father or good steward is imagined to be a prudent, diligent and experienced person. If according to a good stewardship should be measured by the standard of care, the perpetrator has indeed exhausted the duty of care, then there is no negligence, otherwise it is an abstract light negligence. Concrete negligence, also known as concrete slight negligence, means that the health care provider lacked the same care that he or she would normally have exercised in dealing with his or her own affairs. Generally speaking, a reasonable person always handles his or her own affairs with more care and attention than other affairs. The law requires that the actor have a "higher duty of care than a good administrator, i.e., the same care as in the conduct of his or her own affairs, and if the person fails to exercise such care, he or she is guilty of a specific misdemeanor. This understanding and delineation is a generalization derived from many years of practice and research. Handling medical disputes, should also adopt the traditional civil law theory, combined with the specific circumstances of the case for analysis, judgment, and finally arrive at a fair judgment. This is in line with the legal principles of "fairness and justice".
(C) the degree of negligence and liability
According to article 49, paragraph 1 of the "medical incident regulations", the legislator stipulated in an enumerated manner, the compensation for medical malpractice should take into account the "level of medical malpractice", "the degree of responsibility for the damage of medical malpractice" and "the degree of responsibility for the consequences of medical malpractice". The legislator stipulates that medical malpractice compensation shall take into account factors such as "the grade of medical malpractice", "the degree of responsibility of medical negligence in the damage of medical malpractice", and "the relationship between the damage of medical malpractice and the patient's pre-existing disease condition. Then the "medical negligence in medical malpractice damage consequences of the degree of responsibility" factors how to correctly understand and apply, still need to be analyzed specifically.
1, in general, as long as there is a medical negligent behavior of the patient damage should bear full responsibility for compensation, the degree of responsibility of the medical institutions can not affect its liability.
"Medical malpractice regulations" in the legislation, although listed in the "medical negligence in medical malpractice damage consequences of the degree of responsibility" for the specific amount of compensation for the factors, but the "factors" is not a sine qua non, [8] in the specific In practice, should also analyze specific problems. Medical malpractice compensation only from the tort of liability, the legal consequences of tort should be analyzed from the theory of tort liability, if there is no special conditions, the tortfeasor's behavior as long as there are four elements of civil law should bear all the responsibility, that is, the behavior of the illegal behavior, there is damage to the fact that the behavior and the damage results in a causal relationship, the perpetrator of the subjective negligence. Therefore, as long as the medical institution is subjectively negligent, whether it is gross negligence, abstract light negligence, or specific negligence, it should bear full responsibility under the premise of causal relationship. Only the relative of the medical relationship, that is, the patient's behavior in special circumstances, can be exempted from part of the medical institution's liability.
In medical malpractice medical appraisal, only the degree of negligence of the medical institution to be identified. The degree of responsibility of the medical institution, regardless of which degree, but also only on its own degree of negligence of the conclusion, can not be inferred that the affected party has with the degree of medical institutions corresponding to the degree of negligence of the degree of negligence of the ratio. The second paragraph of article 31 of the regulations on medical malpractice treatment stipulates the degree of responsibility for medical negligence in the consequences of medical malpractice as the main content of the technical appraisal of medical malpractice. From the legislative intent, the reason why the "degree of responsibility" as the main content of the appraisal, because the "degree of responsibility" is not only in the handling of medical malpractice compensation cases as the amount of compensation for the consideration of the "factors". ", more importantly, as whether the responsible person can be held criminally responsible (such as whether constitute medical malpractice crime) and medical institutions and medical personnel administrative responsibility of the main basis. Because, from the classification of the law, the "Regulations on the Treatment of Medical Accidents" largely belongs to the category of administrative law, mainly to adjust the administrative behavior.
2, special circumstances, the degree of responsibility for medical institutions negligence, should affect the size of its liability
Law is fair and justice. Medical process, the patient and his family caused by life, health, property damage and mental suffering, not all due to medical malpractice. Here the special circumstances, refers to the patient in the whole medical malpractice, due to their own subjective existence of gross negligence, resulting in increased damage to the results of the expansion of the loss, or the patient due to the "pre-existing disease" damage, or not due to the reasons of the medical institution to the patient caused by the damage, as well as the emergence of the laws and regulations of the situation is not medical malpractice. The medical institution shall not be liable for any damage caused by the patient's "pre-existing disease", or any damage caused to the patient not due to the medical institution, or any damage caused by the patient not due to the laws and regulations, or any situation that does not belong to medical malpractice as stipulated by laws and regulations. (1) Gross negligence means that the patient himself, in the course of medical treatment, can foresee the occurrence of the consequences of the damage only with the attention of an ordinary person, but he is negligent in paying attention to it and does not prepare for it. For example, the doctor told him to take a certain amount of drugs, and the patient to cure as soon as possible to increase the amount of drugs privately to its damage. The responsibility for the damage caused by this behavior should be borne by himself. However, the patient is not responsible for his own abstract light negligence and concrete light negligence. According to the supreme people's court "on the trial of personal injury compensation cases on the application of law," the spirit of the interpretation of the law, can also be seen on the victim's compensation tilt, that is, "the tortfeasor due to intentional or gross negligence causing harm to others, the victim is only general negligence, does not reduce the liability of the person liable for compensation". (2) "Pre-existing disease" refers to diseases and complications that existed prior to the injury that have no relation to the injury. [9] In dealing with medical malpractice disputes, the patient and his family may propose costs, including both medical expenses, transportation costs, escort costs, etc. for the treatment of their own pre-existing diseases, as well as medical expenses, transportation costs, escort costs, etc. for the treatment of damages caused by the negligent acts of the medical institution. Patients and their families will not and can not distinguish between the two, but in determining the scope of civil damages, due to the patient for their own original disease and expenditure is not due to the negligent behavior of the medical institution, so it must be deducted from the cost of damages. (3) Not due to the medical institution. This refers to causes other than the patient's "gross negligence" and "pre-existing condition", such as harm caused by a third party. This kind of non-medical institutions cause damage to the patient, and the negligent behavior of the medical institution and the resulting damage has no correlation, that is, there is no causal relationship. (4) the law "does not belong to" behavior, according to law should be exempted from the responsibility of the medical institution, such as "medical malpractice regulations" article 30 "does not belong to the medical malpractice of the six cases).
Three, the selection and determination of the principle of attribution
The so-called principle of attribution, is the rule of attribution, that is, to determine the civil liability of the perpetrator of the civil liability based on the criteria, is the core of the responsibility. After the analysis of the nature of the legal relationship of medical damages dispute, its positioning as a result of its rights and interests of the disputes arising from the responsibility is civil liability, is the subject of violation of the obligations should bear the ultimate legal consequences. Due to the legal liability itself has the other ways of liability can not be compared with the legal mandatory, so that the medical dispute liability determination of the rights and remedies of the parties to the doctor-patient relationship is of great significance. Therefore, the selection and determination of the principle of attribution as the core content of the civil liability system is also very important in the hearing of such disputes.
China's civil law determines the principle of attribution of tort liability for the principle of fault liability, the so-called principle of fault liability, also known as the principle of fault liability. It is to the subjective fault of the perpetrator as the basic conditions of civil liability for the determination of liability guidelines. According to the principle of fault liability, behavior only in the case of fault, only bear civil liability. No fault, will not bear civil liability. The principle of medical damage tort liability is generally the principle of fault liability.
The principle of fault liability is generally used "who claims, who proves" principle, in special circumstances, also used the burden of proof reversal method, by the victim of negative proof of its subjective fault, if can not complete the proof, it is presumed to be at fault and bear civil liability, this is the principle of presumption of fault liability. According to "the supreme people's court on civil litigation," article 4, determines the medical damage disputes apply the burden of proof reversal also determines the medical damage disputes apply the principle of presumption of fault. "Presumption of fault liability", actually belongs to the category of fault liability, [10] only in the case of fault can not be determined, in order to protect the legitimate rights of the victim, in the case of the victim can not prove that no fault, to determine that it is at fault and bear responsibility. Tort liability for medical malpractice using the principle of presumption of fault, on the one hand, because of the complexity of medical technology, professionalism, to determine the fault of medical behavior and causation is more difficult, in order to protect the legitimate rights and interests of the patients, the need to rely on the principle of presumption of fault to determine the perpetrator's fault; on the other hand, the patient as an individual does not have the knowledge of medical professionals, and the medical side of the cause of the facts of the damage to a better understanding of the cause of the damage to let the evidence Favorable to find out the facts, so as to determine the attribution of responsibility. Reversal of the burden of proof is the presumption of fault responsibility of the significant features, due to the reversal of the burden of proof also makes the medical malpractice damages disputes by the principle of fault liability into the principle of presumption of fault liability, the principle of fault liability and the principle of presumption of fault liability of the difference mainly lies in the allocation of the burden of proof on the difference, the other attribution of responsibility and the principle of fault principle of the content of the basic same. The principle of presumption of fault liability is actually the development of the principle of fault liability, in the elements of responsibility, both of them to fault as the ultimate basis for determining responsibility.
Trial practice is difficult to solve the difficult problem is in the presumption of fault liability principle, the behavior of the fault is presumed, the fault itself has a certain degree of contingency, it is difficult to accurately determine the degree of fault. In addition, the cause of a doctor-patient dispute should be determined according to the cause of action of the parties. The principle of reversal of the burden of proof and presumption of fault applies only to cases of disputes over medical damages. And medical service contract disputes and other disputes between doctors and patients should still apply "who claims, who proves" the burden of proof and the principle of fault responsibility.
In the medical process of accidents and complications and other causes of disputes, with the medical laws and regulations as well as conventional norms to review the medical behavior, are not found to be at fault behavior, its behavior is in full compliance with the norms of the routine diagnosis and treatment, but the patient's consequences of the damage is really due to the medical behavior. In this kind of "no fault, causal relationship" situation, if not give the victim some compensation and unfair. Therefore, in the process of resolving medical disputes, should also consider the principle of civil law in the principle of fair liability.
Conclusion
In the face of the growing number of medical disputes, simple medical fault disputes account for a large proportion of them. In the actual operation of the case in the process will encounter a lot of legal provisions of the law is not clear that the law of doubt or the law does not provide for the situation, therefore, in judicial practice will also appear in the jurisprudence of the results of the situation is not uniform. Especially the degree of medical negligence and damage liability, is to deal with medical malpractice disputes in the case of the difficulty, if not well appreciate the spirit of the legislation, will produce referee results contrary to the relationship between the parties to the legitimate rights and interests of the parties to be fully protected. If not properly understood and applied, at the same time also undermines the unity of the law. Due to the medical malpractice damages issue is a very strong practical problem, and the author's academic knowledge is shallow, lack of experience in engaging in practice, therefore, some of the theoretical views may not be correct, can only look forward to further research in the future.