Obligation of Assessment before Rehabilitation and Determination of Medical Negligence and Organizational Negligence
In practice, when judging whether a physician has medical negligence, it is often determined by the violation of medical custom. However, the litigant may put forward many different medical literatures, often making it more difficult for non-medical professional courts to find out the medical custom that are consistent with the case. Besides, even there is no medical custom record in the medical literature, it cannot be taken for granted that there is no corresponding duty of care in the case. When judging whether a physician has medical negligence, it should still return to the rational physician standard to judge whether there is a violation of duty of care. In addition, medical behavior involves multiple divisions of labor in hospitals. For example, the surgeon is not responsible for assessing the bone density before the rehabilitation of patient, on the other side, have the physiotherapists who performs the rehabilitation no right to diagnose osteoporosis, because they are unqualified as physician. This divisions of labor between different branches in hospitals causes a gap in the protection of patients, but it should not be attributed to individual physicians or physiotherapists. Instead, since the hospital is able to prevent this risk by establishing a systematic assessment system, it should be considered that the hospital should have an organizational obligation to establish this system. If this organizational obligations are violated, the patient may separately request the hospital to assume the liability in contract or in tort.