| With the setting-up of the socialist market economy system of our country, the people's demand for quality service of medical treatment and their consciousness of protecting their rights and interests according to laws have increased gradually. Malpractice Treating Method that Ministry of Public Health issued in 1987cannot meet new situation anymore. According to the Regulations on the Civil Action Evidence the Supreme People's Court issued on December 21 , 2001, which entered into force on April 1, 2002, the rules of inversion of burden of proof applies to the malpractice damage relevant lawsuits, thus the burden of proof of the hospital is significantly aggravated . The State Council issued the Statute on Handling Medical Malpractice on April 1 , 2002, which entered into force on September 1, 2002, and successively issued seven files of a complete set, including Hierarchical Standard of the Malpractice. The stipulations in some law documents including Statute on Handling Medical Malpractice such as inverting the burden of proof, copying the case, endowing patients with rights to learn the truth or agree on something, etc., have broken trade protection. The fairness and transparency have been improved greatly .At present there was still no achievements regarding medical treatment blocking and medical defense system that published yet in our country. The research of construction concerning the medical defense system needs certain innovation. Because of the gap of economic development , the level of perfection of laws, the difference in the medical insurance system and medical treatment system, there are limited aspects that can be compared or used for reference. Therefore, hereby the review of principles is mainly from the relevant laws and regulations of China.Theoretical foundation(1) Establish the right to learn the truth or agree with something To some extent it has realized the legislative purpose of protecting disadvantaged group, while throwing the medical personnel with more stern challenges and tests. Adtionaly, the character itself of this profession has decided that each medical person shall regard himself (herself) as "a potential defendant that will deliberately harm others and shall continuously collect evidences to prove his/her innocence" since the very first day when he/she became a medical staff member. There are two approaches available for the hospitals and the medical personnel to avoid lignin risk: one is gaining the agreement of the patients, protecting andrespecting the parties' right to learn the truth and to agree something; the other is that establish effective medical prevention system, medical documents defense system, medical organizational regulations defense system, medical protection measure and general medical conflicts defense system, etc.(2) The principle for inverting burden of proof The establishing the principle of inverting burden of proof originally aims to protect the disadvantaged groups. Unfortunately, it has delivered the serious reversed discrimination. The unfavorable adducing evidence "doctorine of presumptive wrongs" has aroused wide concern in the medical circle and the masses of medical personnel. The focus of the controversy is that if the medical organizations undertake the negative responsibilities regarding the "causality" and "medical fault", it may exert a bad influence on the behavior of the medical personnel and the medicine. On one hand, according to the request of jurisprudence, the past burden of proof applies to put to the proof on the relation of the sewer or put to the proof on fault responsibility, freely choosing one of them, only the burden of proof of the malpractice applies to put all the two to the proof, the heaviest in all burdens of proof. On the other hand, due to the medical uncertainty andindividual difference of patient, the evidence legislation will maximally protect the patients' rights and interests while put the medical organizations and medical workers in the unfavorable position in the medical lawsuit, which impels the medical workers to carry on the medical defense measures. Worse, if the self-defense of the medical workers is not the effective mechanism, then the patients will have less chances to recover because of the decline of" self-protection " of the medical organizations. It will also damage the long-term development of medical science and then both sides will suffer.(3) Principles on open case historyThe case history is not only the basic materials for medicine, research and teaching, but also a certificate for medical expense reimbursement, and an important evidence for the justice authority making its judgment, and an crucial basis for medical practice. Once introduced open case history, the patients can resort to experts for advice according to the case history if they has some points in doubt during the medical treatment process, or employ the lawyer to carry on negotiations with the medical organizations, or timely propose the application for identifying the malpractice, or bring the civil action to the people's court. It is a kind of socialprogress that the case history is opened. It will be contributive to promoting improvement of the medical level and standardization of the medical behavior.(4)Feasibility researchIn term of theory, this text emphasize particularly on the protection of the rights and interests of medical organizations and medical workers, and improving their ability to prevent medical disputes, against such a point of view as " protecting disadvantaged groups of the relationship between doctors and patients " in the current theory circle and legislative body. As for the basic research, combining the state legislation trend emphatically, it will describe the scientific meaning of the project and its application prospect, include three major bases as follows:1. With entering market economy, growth takes place in the medical dispute and remain high.2. In recent years, the research about the medical disputes generally stay at the level of characteristic, reason, displaying, dealing principles and perceptiveness of the medical dispute. In the international field, the legislation in this aspect of developed country is perfect, the medical insurance is sound, their economic life and cultural life vary much at home , therefore there is no comparable things in the study of this field abroad and home. Sothis research is mainly based on the current situation at home.3. At present, there are still some weaknesses in the study of this field.4. Because of the current situation at home, we set to research from three following aspects:(l)Theory discussion.(2)The medical dispute prevention and feasibility research .(3)The research on defense system of the medical dispute.Research approach and countermeasure:(l)Through the method of the existing materials of the investigation, prove the origin cause of formation of the medical dispute . Solution: Medical dispute case which a hospital utilized from this research and three courts collect , analyse its origin cause of formation one by one, make the origin cause of formation to summarize. After several distinguishing kinds of origin cause of formation of the medical dispute, it is feasible to take different methods of defending according to different original cause of formation.(2)According to the provision on doctors and patients' rights and interests of the domestic laws and regulations , research and solve the medical organization and medical worker's rights andinterests protection problem, prepare theory and practice well in order to establish the defense system in medical treatment. Including: the right to know the truth and to agree with something theory, burden of proof invention theory, open case history principle , medical particularity, market economy protection principle , relationship between doctors and patients characteristic, etc. of disadvantaged groups under the terms, in order to have a deeper knowledge and perceptiveness of medical disputes.(3)The issuance of the Statute on Handling Medical Malpractice has provided the possibility on the entity and procedure for strick precautions of the malpractice , but should accomplish the effective strick precaution and medical dispute of treatment, it is not enough to only have regulations, make this kind of possibility turn into a reality , need medical organization during the process of carrying on medical care, observe various kinds of rules and regulations and several and make a diagnosis and attend to the norm and routine, observe the medical worker professional ethics, especially an important one is, the medical organization controls the index system and scientific appraisal method in the medical service quality, only in this way , could really make possibility turn into a reality . The final goal of this text is to establish the system of defending in medical treatment. Including... |
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