试论药品侵权事件惩罚性赔偿责任的成立

惩罚性赔偿制度因其独特的功能弥补了现行药品侵权救济的不足,为药品责任体系所用,意义重大。但是药品侵权事件因侵权对象的双重性、侵害状态的复杂性及侵权关系的不易确定,惩罚性赔偿责任认定的构成要件需要特别规定。本文对此展开分析,探讨药品侵权事件惩罚性赔偿责任的具体主观、客观构成要件。     

无人身损害药品惩罚性赔偿的必要性探析

近年来我国无人身损害的药害案件频发,《药品管理法》及其相关法律缺乏对这类新情况的规定.为了保障药品消费者的合法权益,我国有必要将惩罚性赔偿制度引入无人身损害的药害案件中,并在新修订的《药品管理法》中予以明确.惩罚性赔偿金额应当以药品价款为基础,并施以一定浮动比例和上限,同时也应采用递减的模式.     

惩罚性赔偿与食品消费安全制度构建

我国现行法律对食品消费侵权事件中受害人的权益保护不足,而受害人主张权利的积极性也不高。在食品消费领域建立惩罚性赔偿制度一方面可以加强受害人权益保护的权益,另一方面还可以增加违法成本,同时能够调动社会公众与食品安全违法行为作斗争的积极性。文章认为,食品消费惩罚性赔偿应当以违法者主观存在故意或重大过失为前提条件,确立合理的赔偿标准,以保证赔偿应有的公平性和打击食品违法活动的针对性。     

医疗事故赔偿中的若干问题和方法

医疗事故的赔偿是医疗事故善后处理的重要方面。随着《医疗事故处理条例》的实施,医疗事故的处理及其赔偿纳入了法制化的轨道。科学、公正、合理的赔偿对妥善处理医疗事故,解决医患纠纷,保障医患双方的合法权益起了一定的作用。笔者依据,《条例》结合日常工作实践,从对赔偿项目的认识,赔偿项目的实施,赔偿费用的计算方式等方面提出了观点和方法。     

一起因学生群体服用驱虫药引发的诉讼

组织学生集体服用驱虫药后,一名学生随之双眼视力减退而提起诉讼,从行政行为和民事赔偿的角度就此进行分析.认为学生集体服药属行政行为,不应承担民事赔偿责任.并对解决这类问题提出了建立社会保障机制的建议.     

我国卫生法律的民事侵权责任分析

卫生活动中大量存在侵犯他人人身、财产,造成他人财产损失的行为.根据我国民法规定,此种行为应当承担民事赔偿责任,但我国的民事法律中,有些法律并不规定这些侵权行为应当承担民事赔偿责任,有些法律虽然规定了民事赔偿责任,但也排除了许多侵权行为的民事赔偿责任.这样的规定不符合我国民法精神.特别是在我国宪法中已明确规定"公民的合法的私有财产不受侵犯"、"国家尊重和保障人权"的情况下,这样的规定应当完善.     

从六“知”角度论手术相关医疗赔偿的原因及长效控制机制

该文从“知法、知己、知彼、知人、知情及知错”等6个方面,对手术相关医疗赔偿的产生原因进行了剖析,初步探讨了可行的长效控制机制,为基层医院有效防范手术相关的医疗赔偿提供思路和借鉴.     

医疗事故赔偿中的多数药物不良反应事件是可以预防的

美国波士顿Brigham和妇女医院的研究人员Dr.JeffreyM .Rothschild及其同事撰文指出,因药物不良反应而导致的医疗事故赔偿通常是严重、昂贵且可以预防的。他们分析了一家以新英格兰地区为服务对象的医疗事故保险公司在1990～1999年间的医疗事故保险赔偿资料。具体为研究人员通过电子扫描查寻药物不良反应的赔偿事件,然后由两名医生对其进行总结,此外研究人员还深入总结了与药物不良反应有关的人为失误因素。结果显示,在接受分析的2 0 4 0起赔偿事件中,6 .3%的事件与药物不良反应有关;这其中又有73%的事件被认为是可以预防的,导致此类事件最…     

环境侵权经济赔偿办法探究

提出了环境污染健康赔偿金筹集、管理和环境污染健康危害赔偿范围等.为了保证环境污染健康损害赔偿的执行,提出:①建立健康损害赔偿基金;②加强基金管理,确保赔偿基金的合理使用;③成立环境污染健康损害医学鉴定机构,保证鉴定的公正性、权威性;④建立健康损害认定专家组;⑤规定经济赔偿的内容.     

医疗事故赔偿之探讨

要制定一个可操作的医疗事故赔偿标准，首先应对赔偿总额作出规定，医疗事故赔偿总额可参照道路交通事故的赔偿数额，但应低于交通事故的赔偿。并非每例医疗事故受害人都可以得到这个数额，因为赔偿主要受三种因素影响；（１）原因力大小；（２）不良后果造成劳动能力丧失的程度；（３）年龄因素。分别确定了这三种因素的等级，就可以计算赔偿额。     

Considerations for implementing pre‐dispute arbitration agreements in provider contracts

Due in part to the historical increase in large compensatory awards and punitive damages in jury verdicts in medical malpractice/long‐term care cases and the concomitant increase in the costs of defending these claims, healthcare providers have sought to reduce litigation costs and avoid exposure to runaway jury verdicts in medical malpractice trials by implementing arbitration agreements in healthcare admission contracts. Risk managers should be aware of the evolving law in this area and recognize that a successful arbitration program requires a commitment to ensuring that the program is administered in accordance with evolving laws.     

Consumers versus managed care: the new class actions.

The plaintiffs in pending consumer class-action lawsuits against health maintenance organizations (HMOs) should fail in their claims for damages for fraud under federal anti-racketeering legislation. Although HMOs have regularly failed to disclose their business methods and have not strictly honored their contractual coverage promises, the circumstances in which they introduced cost controls into a market sadly lacking them suggest motives not deserving punitive sanctions. Courts could easily find that HMOs violated the Employee Retirement Income Security Act (ERISA), however. Injunctive relief compelling more extensive disclosures and clearer contracts might well legitimize HMOs' methods and generally improve the performance of the health care marketplace.     

Fired employee must seek work to qualify for compensatory relief

The 2nd U.S. Circuit Court of Appeals in New York State has adopted a new ruling that applies to victims of employment discrimination who fail to look for other suitable employment after they are terminated. Danny Greenway was fired from his job as a bartender from the Buffalo Hilton Hotel in February 1994 because of his HIV status. Greenway was awarded $1.4 million in punitive and compensatory damages. On appeal, the hotel stated that since Greenway had made no effort to mitigate his damages by seeking suitable employment, compensatory damages should be eliminated. Participation in a job training program and employment at a temporary agency did not fulfill the plaintiffs obligation to mitigate damages. The court eliminated all compensatory damages for Greenway, leaving him with $200,000 in punitive damages. A similar ruling exists in both the 5th and 11th Circuit Courts.     

Hospital, doctor to pay $350,000 for denial of medical care

Memorial Hospital of Freemont, OH and a physician, Charles Hill, were ordered to pay $350,000 to the estate of Fred L. Charon because he was denied AIDS-related medical care. Charon was refused admission to the hospital in 1992 and had to be driven 42 miles to another hospital. A jury ordered the defendants to pay punitive and compensatory damages for violating the Federal Rehabilitation Act, which prohibits recipients of Federal funds from discriminating against people with disabilities. This case establishes precedents regarding punitive damages recoverable under the Rehabilitation Act, posthumous payment of damages, individual medical treatment, and the dismissal of a prospective juror based on his opinion of gay men. The hospital and Dr. Hill dropped plans to appeal the decision and have worked out a settlement with the executor of Charon's estate.     

Appeal argued

The 11th U.S. Circuit of Appeals heard oral arguments in a case involving an HIV-positive employee. The employee, Salvatore DeFalco, was fired by a nude-dancing club because they thought his HIV infection would drive away customers. A jury awarded DeFalco $360,000 in damages, primarily punitive damages. The club insisted that the firing was motivated by the employee's breach of company policy forbidding discussing personal matters at work and his work performance. The trial judge reduced the damages amount to $202,111.     

6th Circuit overturns $1 million verdict for inmate with AIDS

The 6th U.S. Circuit Court of Appeals ruled that neither Jefferson County, KY nor the Department of Corrections could be held liable for harm suffered by the late Pedro Sosa. Sosa, who had AIDS, claimed he was tortured, mistreated, and harassed by corrections officers at the Jefferson County Jail. Sosa suffered from AIDS-related diarrhea and cramps, but was placed in a cell with no toilet. He was ridiculed about his accent and his sexuality, and was physically attacked. A jury awarded Sosa $1,180,000--compensatory damages of $500,000 each from the county and the Department of Corrections, compensatory damages of $10,000 from each of the officers, and $50,000 punitive damages from each of the officers. The three-judge panel of the Court of Appeals reversed this jury verdict. The per curiam decision was based on a U.S. Supreme Court case that raised the bar for plaintiffs who seek damages arising from violations of their constitutional rights at the hands of public employees. The panel wrote that Sosa did not prove a link between the county's alleged knowledge of isolated derogatory remarks toward homosexuals and the county's hiring practices. The appeals panel did not overturn the remaining $180,000 in compensatory and punitive damages owed by the three corrections officers.     

Judgement in civil suit

A South Carolina judge ordered a man to pay $1 million in actual damages and $4 million in punitive damages to his ex-girlfriend for infecting her with HIV. The woman, who sued under the pseudonym "Jane Doe," received a directed settlement after her ex-boyfriend failed to respond to the suit. The plaintiff did not press criminal charges because she feared her identity would be disclosed.     

Court upholds $600,000 verdict in AIDS firing at university

A Missouri appeals court affirmed a $600,000 verdict in favor of an employee who claims he was fired because of AIDS. The three-judge panel found that Southeast Missouri State University President Bill Atchley knew of the employee's condition and fired him because of it. The employee, known as H.S. in court records, is the first plaintiff in the State to recover damages under Missouri's Human Rights Act. H.S. was awarded $100,000 in punitive damages and $500,000 for back pay, front pay, emotional and physical damages, and medical care. The university has filed a motion for reconsideration.