Provisions of the basic ideas of medical liability: medical liability, is currently a very sensitive issue of tort liability, the draft tort liability law had to face the actual problem to solve this problem. In this problem, the biggest problem is two, two yuan, is a medical accident and medical mistakes two yuan, two yuan two is the standard of compensation for damage, medical accident compensation standard is low, the higher standard of medical fault compensation. Therefore, the provisions of the tort liability, must be clear, should establish a unified system of medical damage liability structure, applicable law of contradiction status change the two element structure of medical malpractice, the balance between the protection of the interests of fair and properly handle the protection of the interests of medical institutions, the victim and the protection of the interests of all the patients, there are to promote the healthy development of the social medical security system. Based on this, in the formulation of the "tort liability act", the system of medical damage liability in China should include the following six aspects:  
The concept of  , a unified medical liability;

"Tort liability law" to determine the concept of medical liability, should abandon the medical malpractice liability and medical fault liability of two different types, the direct use of a unified “ medical liability ” concept. It should be noted that this is not only a concept of tort liability law, the concept of a unified, more important, is the end of the medical malpractice liability division of the legal system is not unified, uniform law applicable rules.  

Two, the principle of determining liability system and the basic types of   medical damage liability;

Draw lessons from the tort law rules of the medical liability of each country, determine the liability principle system of medical damage liability in our country, by the principle of fault liability, presumption of fault and no fault liability principle. At the same time, according to the specific circumstances of medical damage liability and the applicable rules of different reference French medical damage compensation law, the liability of medical damage is divided into three basic types, namely medical damage liability of medical ethics and medical malpractice liability product liability, respectively applicable imputation principle and specific rules of different.  

Medical malpractice liability, refers to medical institutions and medical personnel engaged in disease inspection, diagnosis and treatment methods for the treatment of choice, the implementation of measures, progress tracking, and postoperative care and other medical behavior, does not conform to the negligence when existing medical professional knowledge or technical level, medical institutions should undertake the tort liability. Principle of liability for fault in medical technology damage liability. The constitutive requirements of medical liability for medical institutions and medical personnel shall be borne by the plaintiff, namely, the burden of proof, even if the elements of medical negligence are borne by the injured party.  

The medical ethical liability, refers to medical institutions and medical personnel engaged in all kinds of medical behavior, not the patient fully informed or explain the illness, patients did not provide timely and useful medical advice, not conservative with the condition of all kinds of secret, or fails to obtain patient consent to take some medical measures or stop treatment negligence and violation of medical occupation, occupation conscience or ethics should abide by the rules, the medical institutions shall bear tort liability. In the proceedings, the responsibility of the medical illegal acts, damage to the facts and the evidence of the cause and effect, the injured party is responsible for the proof. On the basis of the presumption of fault, the burden of proof of medical negligence all belong to the medical institutions, medical institutions, their own party that there is no medical negligence, shall be their proof, prove their claim, otherwise it shall be liable for compensation.  
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The medical product liability, refers to medical institutions in the medical process using defective drugs, disinfectants, medical equipment and blood products and medical products, thus causing injury to human body, should bear the liability of medical damage. For the medical product liability, should apply general principles of product liability, the principle of liability without fault [1], whether manufacturers, regardless of the medical institutions or medical products, the seller has the fault, shall be liable in tort.  

Three, determine that   general standards of medical negligence; "

"Tort liability law" should be clearly defined standards of medical negligence is a violation of the duty of care, medical institutions in violation of their own duty of care, that is, medical negligence.  

It is necessary to determine the specific criteria for judging the medical technical errors. This standard can learn from the Japanese medical liability law of medical practice standards [2], can use “ medical standards at the time ” standard, determine the medical institutions and medical personnel should be in clinical activities to corresponding with the level of medical technology attention obligation. To judge whether medical institutions and medical personnel violate technical duty of care, should consider the factors, such as the quality of medical institutions, medical personnel, and so on.  

To determine the standard of medical ethics negligence, the basic standard is the medical institutions and medical personnel to determine the medical institutions and medical personnel pay attention to duty, that is, the moral obligation.  

Four, determine the unified medical liability disputes rules of burden of proof  

The burden of proof of the liability for medical technology damage should be borne by the party who suffers the burden of proof. One side of the injured party can not prove that the conditions apply to ease the burden of proof, to prove the performance of the evidence, the presumption of medical institutions have medical negligence. If the victim is able to prove that the medical institution has the legal situation, and the medical negligence. The legal situation can be identified as the following four types: (1) in violation of health administrative regulations or specifications; (2) conceals or refuses to provide dispute related medical documents and relevant information; (3) the forgery, tampering, destruction of medical documents and relevant information; (4) medical documents should be documented and no records or records to show significant omissions or medical defect. The presumption of medical institutions of medical negligence, reverse the burden of proof, borne by medical institutions to prove no fault of their own evidence to prove the exemption of the tort liability, not proof, shall be liable for compensation.  

Medical Ethical Liability for fault liability is the principle of presumption of fault, the plaintiff's burden of medical malpractice, damage to the facts and causes of the burden of proof. On the medical negligence elements of presumption, as long as the medical institutions do not have the obligation to inform the duty of ethics, it is presumed to have fault, the burden of proof of the burden of proof, the burden of proof.  
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In medicines, disinfectants, medical devices and other medical products and blood products liability, the principle of liability without fault, illegal medical behavior, facts of damage and causation, the responsibility by the aggrieved party with the burden of proof. If the medical institution believes that the damage was caused by the victim intentionally, the medical institution shall bear the burden of proof, which can not be proved by the medical institution.

The burden of proof should be borne by the injured party, in general, can not be proved, does not constitute the liability for medical damage. However, if there are circumstances, the victim party can not bear the burden of proof, medical behavior and medical institutions and medical staff is likely to cause the injury to human body, when it reaches the performance requirements of the rules of evidence, can be a causal relationship between the presumption of the diagnosis and treatment behavior and personal injury patients. Medical institutions advocate no cause and effect relationship, the implementation of the burden of proof upside down, the burden of proof by the medical institutions.  

Five, the implementation of unified standard of compensation for medical damage and proper restriction to  
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The compensation for medical damage liability, should not separate standards, in the specific implementation, resulting in personal injury patients by medical negligence of medical personnel, the medical institution is liable for damages, in determining the compensation standards, the implementation of a unified standard of compensation for personal injury. At the same time, it should be particularly noted that, in order to protect the interests of all patients without damage, the liability for damages to the medical institutions should be properly restricted. This restriction is manifested in four aspects: first, the liability of the medical institution, the reason must be applied to determine the rules, the damage caused by the damage to the results of the damage caused by the patient's own causes. Second, the medical liability for damage to the spirit of the appropriate restrictions on comfort. Third, the profit and loss balance, the victim is based on the medical behavior and the damage compensation, shall be deducted from the compensation. Fourth, for the victims of disability, as well as other future compensation should be given, can be more applicable to regular payments, and not to take a one-time compensation.