Civil Liability for Medical Device Failure
When the patient went to the hospital for treatments, but some damage occurred to him, which not caused by the medical treatment of the doctor, but because the medical devices used by the doctor were malfunctioning. But the safety of medical device is not included in the duty of care of the physician who is engaged in medical treatment, so that the single medical staff don’t constitute any infringement; if the patient wants to ask the hospital to take the enterprise liability for the illegal act of the individual medical staff, there might be an obstacle to the claim. But the contractual obligation of hospital is that the hospital should not only be equipped with adequate, ready-to-use and safe medical devices, these medical devices should also regularly be maintained. However, if the hospital is negligent for the maintenance of these medical devices, and, as a result, the medical devices are malfunctioning when the physician engages in medical treatment, the hospital shall be liable for damages caused by the nonperformance of obligation to the medical contract parties or the person affected by the contract protection. In addition, the maintenance of medical device is also an obligation of transaction security and liability of organization to the hospital. According to paragraph 184 section 1 Civil Law, the hospital should be liable for an infringement in case of violation of liability of organization. Moreover, the failure of medical device is within the scope of controllable risk of the hospital, so the hospital should bear the burden of proof for the maintenance obligations of the medical device, and make the effect of the conversion of burden of proof in the procedural law.