Abstract
Where there exists a medical contract between the patient and the doctor, if the doctor’s negligence leads to personal harms to the patient, the doctor’s behavior constitutes the non-performance of obligations due to his failure of proper fulfillment of contractual obligations and his negligence also constitutes the infringement on the patient’s personal rights including the right to life, right to body, and right to health.
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Notes
- 1.
Christian Von Bar (2001).
- 2.
Article 2 of the Regulation on the Handling of Medical Accidents provides that “The term ‘medical accident’ as mentioned in the present Regulation shall refer to those that have caused personal injury to the patients negligently by the medical institutions or the staff members thereof in the activities of medical treatment by violating the laws, regulations, ministerial rules concerning medical treatment and health or the standards or conventions of medical treatment and nursing”.
- 3.
Xue (2003).
- 4.
Jiang (1999).
- 5.
Rosenberg (2002).
- 6.
Zhang (2000).
- 7.
Jiang (1999, 502–503).
- 8.
Li (2003).
- 9.
Wu (2002).
- 10.
Jiang (1999, 504).
- 11.
Id., 504–507.
- 12.
Yin (2003).
- 13.
Liu (1996).
- 14.
Dingquan (2003).
- 15.
Pan (2005).
- 16.
Ding (1991).
- 17.
Christie v. Callahan, 75 App. D. C. 133, 124 F. 2d 825 (1941).
- 18.
Huang (1996).
- 19.
Dingquan (2003, 513).
- 20.
Chen (1996).
- 21.
Gong (2001).
- 22.
Shen (2001).
- 23.
Dingquan (2003, 513–514).
- 24.
Chen (1996, 104).
- 25.
Gong (2001, 317–319).
- 26.
Id., 306.
- 27.
Article 426 of the Civil Procedural Law of Germany provides that: If the other party denies holding the evidence, the court then shall question the whereabouts of the document. The other party shall be informed to carefully find the whereabouts of the document on the notice. The rest issue shall be applied to the provisions of Article 449 and Article 550. If the court is convinced that the other party holds, the court shall order the other party to present the document.
- 28.
Gong (2001, 310–314).
- 29.
Shen (2001, 34–35).
- 30.
Chen Zhongwu, On Burden of proof of Medical Malpractice in France, Report paper of at the Symposium on Comparative Study of Burden of Proof of Medical Negligence held at the National Taiwan University on December 24, 2005.
- 31.
Yu (1998).
- 32.
Qiu Congzhi. On constitutive elements of liabilities for danger-change of accountability principles of infringement, in the doctrine of civil liability fixation for medical disputes, at 105 (Master’s Dissertation of Taiwan Soochow University, 1996).
- 33.
Zhu Baisong, On Burden of proof of Medical Malpractice in Japan, Report paper of at the Symposium on Comparative Study of Burden of Proof of Medical Negligence held at the National Taiwan University on December 24, 2005.
- 34.
Cai (2005).
- 35.
Tang (2002).
- 36.
Li (2003, 181).
- 37.
Xiao and Qiao (2001).
- 38.
Article 23(2) and (3) of the Regulation on the Handling of Medical Accidents stipulates that: “The database of experts shall consist of medical professionals that satisfy the following conditions: (1) having good professional knowledge and being of excellent professional ethics; (2) being employed by a medical institution or institution of medical teaching or research and holding a senior professional title for three years or more; any legal medical expert who satisfies the conditions as provided in item (1) of the preceding paragraph and holds a senior professional title may be included in the database of experts.
- 39.
Article 26 of the Regulation on the Handling of Medical Accidents stipulates that: “In any of the following circumstances, members of the groups of experts shall withdraw, and the parties concerned may plead their withdrawal in oral or written form: (1) being a party or a close relative of the party to the medical dispute; (2) having interests in the medical dispute; (3) having other relationship with the parties concerned that may affect the impartiality of authentication”.
- 40.
Wang (2003).
- 41.
Liang et al. (2004).
- 42.
Wang et al. (2004).
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Zhang, X. (2018). On Burden of Proof in Medical Negligence. In: Legislation of Tort Liability Law in China. Springer, Singapore. https://doi.org/10.1007/978-981-10-6961-1_12
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