Moreover, should be clear and damage to the victim must give relief to this legal principle. The lawyer with a party, in some cases, although the patient body because the fault behavior of medical institutions have been damaged, but after identification, medical institutions to conduct did not constitute a medical accident, although not as medical accident treatment, but if the patient's life or health is because the fault behavior of medical institutions by damage, harm or medical institution shall bear the liability for civil compensation for the damage to patients. Not because the fault behavior of medical institutions do not constitute medical malpractice, shall bear the liability for compensation is not the victim's damage. The citizen's rights of life and health is a basic human right, respecting and protecting human rights is a basic principle of China's constitution and law determined. No matter what the nature of the infringement, as long as the damage to people's life, health, should pay economic compensation, it is our most basic law to remedy the victim, concrete embodiment of the basic rights of protection of human is also in the constitution.

"Regulations on handling medical accidents" just from the specified meaning to solve the medical accident of this special type of infringement dispute liability issues, do not belong to medical malpractice medical tort dispute, it shall be handled in accordance with relevant provisions of the general principles of the civil law "". Here is the legal embodiment"Two yuan"Laws, regulations, is reflected in the scope of applicability of division with the.

Medical malpractice cases, lawyers in threeIdentification of problems
    Medical malpractice cases lawyers almost inevitably encounter problems identified, because the appraisal conclusion is that in such cases the key facts. The practice of lawyers in such cases, the following problems in the identification:   
   1Technical appraisal of medical accident, legal effect.
    The legal effect of medical malpractice identification is a key problem influencing the medical dispute lawsuit. Medical malpractice cases lawyers, should correct the two kinds of wrong ideas:
    One is that the incident of malpractice technical appraisal conclusion is the only basis for dealing with medical disputes, the inversion of burden of proof in medical dispute case, that the hospital so as not to apply for medical malpractice, is the medical behavior can not prove that their medical behavior and the damage there is no causal relationship between or no fault of your own;
    Two is that the medical behavior by the Medical Association medical malpractice that was indeed a medical accident, then you can ask for compensation. If you do not constitute medical malpractice, medical institutions shall not be liable for.
    Technical authentication of medical accidents, according to its legal attribute, is the medicine will have a conclusion whether medical institutions gross negligence in the medical behavior, is the main basis for health administrative punishment to the medical unit, the only basis but not court of medical disputes. The reason why some people think the incident of malpractice technical appraisal conclusion is the only basis for dealing with medical disputes, the basic reason is that the medical tort simply equated with medical accident, that if the medical dispute has not been identified as medical malpractice, is also not constitute medical tort, completely confuses the boundaries between the two.
    Therefore, in this kind of case law agent process should be clear:
    Technical authentication of medical accidents is evidence in civil litigation shall be subject to Party A, cross examination, authentication in court, the judge determines its effectiveness, the conclusion is not necessarily as adopted by the court;
    The only evidence of medical malpractice identification conclusion does not deal with medical disputes, no fault medical hospital behavior to other forms of evidence to prove their medical behavior and the damage there is no causal relationship between or their;
    The victims to prove the objective existence of illegal medical behavior and the fact of damage, if the medical institution shall not burden of negative causation and fault, the court held that this presumption is not contrary to the objective law, even in the absence of the appraisal conclusion can also be directly recognized civil tort liability.
   2, medical accident technical identification and forensic medical dispute

2002Years4Month14The State Council announced the "Regulations on handling medical accidents" which gives the parties choose Medical Association of medical malpractice technical appraisal rights, but refuses to accept the first appraisal conclusion, after receipt of the first identification of the conclusions from the date of15Days of Provincial Medical Association put forward again appraisal application. While the judicial identification, is that during the litigation, in order to find out the facts of the case, the people's court authority, or should the parties and other participants in the proceedings of the application, appoint or entrust a specialized knowledge, inspection, the special problem identification and evaluation activities. Broadly speaking, the court commissioned medical malpractice also belongs to the category of judicial appraisal; the narrow sense, the medical fault identification Commission of court non medical association is the judicial authentication. Here we discuss the judicial identification only refers to the narrow concept of judicial identification.   

The two methods differ, Medical Association medical accident identification only Is it right? Medical accident identification, the use of health system standard; while the judicial identification in forensic identification method, it only finds: first, there are no adverse consequences; two, doctors have no fault; whether there is a causal relationship between the three, fault and bad consequences, as well as the causal relationship between the degree of. Then, the same case, medicine will think not medical malpractice, the judicial authentication may take full responsibility will decide the hospital. For example, in the cause of hospital patients with diabetes glucose lost error to cause the death of the patient's case, the technology identification of medical accident conclusion two medicine that does not constitute medical malpractice, but after the proceedings, the parties to apply for judicial authentication, judicial appraisal conclusion that patients death is most likely due to the error behavior of the hospital transfusion the hospital has fault, according to the conclusion of judicial identification, the court finally made the support of patients with lawsuit request the decision.
    According to the2002Years4Month1On the implementation of the "on the civil evidence regulations", disputes of medical damage compensation reverse the burden of proof, then apply for identification and not by the hospital decided, what kind of identification form theory is developed from the hospital decided.

Because of the above differences of medical accident technical identification and forensic identification, patients often hope that through the forensic identification form to ascertain the facts. Lawyers acting for such cases in practice, we should fully grasp the contradiction with two kinds of identification, master skills, to maximize the maintenance of lawful rights and interests of the client.

If the counsel patients, if after the identification of medical malpractice medical behavior of Medical Association does not constitute medical malpractice, although the technical authentication of medical accidents is medical experts to make, but the lawyer can help the parties according to the provisions of laws and regulations for the law officer review medical malpractice technical appraisal personnel, organization, procedure and conclusion of legitimacy, the judge shall not be accepted for the conclusion of authentication that illegal, shall apply for judicial expertise to apply to the court for the positive judicial identification, change the past in the technical authentication of medical accidents in the attempt nothing and accomplish nothing before practice.
    The above is the author thinks several practical problems in medical dispute cases, lawyers often encounter are valuable, and peer discussion.