On Legal Issues Of Medical Malpractice Insurance

Medical dispute has been a widely social concerned problemfor more than ten years.As a consequence,the lack of basic trust between doctors and patients motivates many medical providers adopt defensive medicine.Introducing insurance system to the medical damage compensation has already been a common practice in the world, due to its stabilizing effect for society. Since2008. some provincial governments issued orders or notices to require that Grade2and Grade3public hospitals must attend medical liability insurance.Yet, there seems to be no progress in the field of medical liability insurance, merely in an awkward situation of "most hospital is reluctant to insure and insurance company barely maintain the business ". It is urgent for us to reflect on the absence of professional legislations and vacancy of system construction. Based on the difference between medical thinking and jurisprudence thinking, and combining law research with medical practice, the article discussed the direction of development medical liability insurance----compulsory medical liability insurance, in order to make contribution to legislation. The text can be divided into six chapters, except the introduction and conclusion, each chapter of primary coverage summary is as follows:The first chapter is mainly following the logical clue of "The concept of medical malpractice insuranceâ†'the relationship between medical malpractice insuranceand medical tort lawâ†'The function of medical liability insurance", and clarify the relationship between medical liability insurance and medical damage, medical negligence, medical incident, medical insurance, intended to clear the concept of medical liability insurance. Using above as a base, medical liability insurance could be defined from a legal perspective,"Medical liability insurance is a contract that insurance companies giveinsured coverage against losses from the damage arising out ofrnedical malpractice, during the period of insurance".Medical liability insurance has the functionality of stabilizingeconomy and society.The function of medical liability insurance can be divided into two aspects from the significance of system theory and sociology. From the perspective of common social relationship, medical practice is uncertain, necessary and technical limitted. Introducing medical liability insurance into medical practice could establish a risk transfer mechanism for medical care provider. Then, medical professionals would have the courage to popularize and apply new medical technology, and the overall welfare of society would be improved at the same time. From the specific social relations between insure, insured and patient,the function of medical liability insurance contains definite subjective purpose, so we need an appropriate arrangement to medical liability insurance system in order to achieve it’s function.The second chapter follows the research method of problems and solutions to explore the status and defect of medical liability insurance,pointing out that implementing compulsory medical liability insurance is the realistic choice for our current medical liability insurance system model, based on the comparative study of the foreign legal system of medical liability insurance. This part further demonstrates that the theoretical foundation of the compulsory medical liability insurance system model:to ensure patients to get compensation is its humanistic foundation; attributes of quasi-public goods is its economic foundation; socialization of civil law is its ideological basis;promoting protection of public interest justifies its aim;and market failure makes is its public law foundation.The third chapter constructs the main legal system of medical liability compulsory insurance, hoping to provide a reference for legislation.First, it should solve the basic legal proposition of the medical liability compulsory insurance law and accurately position the legislative purpose and principles.Among them, the legislative purpose is to protect the patients to be compensated according to the tort law and achieve the goal of maintaining medical order and promoting the development of health care industry. Meanwhile, compulsory medical liability insurance law should insist the principle of legality convenience, non-profit, availability and accessibility. The legal construction of medical liability compulsory insurance should regard it as a special law of insurance law, but should also be different from the insurance law. Major systems include the main body of medical liability insurance,effective maintenance mechanism,legal supervision and premiums to raise. Among them, the main focus of the system is to establish the standard scope of the insured, which must simultaneously satisfy two requirements:to provide medical services for patients directly and shall bear civil liability according to law independently.The size, risk capacity of the medical institution and whether it is a for-profit organization and the nature of property rights should not be considerations that can remove the duty to insure.Choosing insurance company as a insurer of the medical liability compulsory insurance is subject to the outcome of our objective reality. The insurance company has already established a first-mover advantage,so weneed to introduce appropriate competition to prevent the formation of monopolies.The system of effectiveness to maintain sets rules about ban with exception on terminating medical liability insurance contract for the insurer and the insured, the remedial procedure for the insured to violate the obligation to notify important issues is to extend period of performance of informative obligation and restrict the insurer to terminate the contract as the insured violate the obligation to notify; On the Legal Effect of violating the provision of effectiveness to maintain, different policy holders should undertake different legal liability, for the insured of medical institutions may apply to defamation punishment and property penalty,while the insured of individual medical practitioners also can apply to behavioral sanction that is to limit their practice licenses,including suspension or revocation of practice license. Legal regulatorysystem includesthe identification of medical liability insurance’s regulation by government, and price negotiation mechanism. As for premium-raising system, it is reasonable for medical staff to afford a greater proportion.According to the clue of insurance coverage that exist in medical liability insurance’s format clauses, the fourth Chapter make a explanation to insured object, diagnosis, treatment behavior, insurance period and scope of exemption, with methods of normative analysis. First of all, the main significance of distinguish insurance applicant and the insured is the doctor who employed in hospital may be the legal subject of insurance contract when the subject of diagnosis and treatment intersected with the subject of liability. Next, the main significance to distinguish the claimant and the patient is whether the claimant damaged by non-medical service can get claim paiddepends on contract clause, without clause should be explained conducive to the insured. Moreover, the definition of diagnosis and treatment should combine subject, substance and purpose rather than separate anyone,meanwhile itis necessary to follow the temporal sequence of diagnoseâ†'treatâ†'late preventionâ†'recuperate, and medical practice has medical adaptation and technologylegitimacy. Once more again, this part involves the scope of exempted liabilities of the insurer. Medical damage may be resulted from drug’s defective or medical practice’s malpractice, so the claims are mixed. When the cause of medical damage can be distinguished, the latter could involve in the scope of medical liability insurance’s coverage, except for medical practice beyond certificated. The civil liability of medical malpractice should be able to get coverage by medical liability insurance.In the end,format clauses determine the insurance coverage by the model of "occur in period+claim in period+retroactive date",so it’s much more likely to nothing for the claimant who crossed different insurance period. It’s necessary to extend retroactive date. Settlement of claim may be separated in different insurance period, the major causes includes the close relations between one person one time and insurance limits, deductible; Diagnosis and treatment crossed different insurance period; The damage from medical malpractice is cumulative; Diagnosis and treatment is intermittent. In the situations where the patient’s damage arising from one medical incident during one period of insurance, how to define insurance limits should explained conducive to the insured.As to burden of proof,insurance company should prove that the damage isn’t result from the same medical malpractice, to show the value orientation of protect interests of the insured.The fifth chapter demonstrates the balance of interests and allocation of rights between the insurer and the insured in the defense and settlement surrounding insurance claims and reconciliation. First, the theoretical foundation that the insurer should undertake the defense obligation is the principle of good faith and reliance interest to maintain and the public policy.The nature of the defense obligation depends on the functional orientation of medical liability insurance and characterizing the defense obligation as contractual obligations is a realistic option.The scope of defense obligations is larger than the range of damage caused to the insured, and the scope of defense obligation is determined by the standard of "possibility" or "potentiality", therefore to fully protect the interests of the insured.Secondly, the medical liability insurance is a kind of professional liability insurance, so reputation is especially important for the insured.In order to coordinate the conflict of interests between the insurer and the insured in defense and settlement,the design of the law should make special arrangements for this point.When the Insurer exercises control over the defense reconciliation, pre-litigation settlement for non-meritorious claims may lower the insured’s reputation and increase the premiums in the coming year. Through designing the system of "consent to settle clause" and"Reservation of Right Letter" and "non-waiver agreement "can balance the conflict of interests between the two parts.Again,the insurer has the right to control over the defense reconciliation but maliciously reject the settlement while making the dispute went into proceeding, the insurer shall indemnify if the insured suffered from loss because of this, the insured has the right of settlement consent but insist on rejecting the settlement while making the dispute went into proceeding,the insurer shall not indemnify the amount which exceeds insurance limits,thus prompt the insured to exercise the right of reconciliation consentrationally.Medical liability insurance defense and reconciliation of control system is designed of public policy is a product of competition.On one hand, it is to protect the insured’s reliance interest against the insurer, and on the other hand, it is to require the insurer to act truly based on the best interests of the insured. In reasonable caring of the insurer’s financial risk arrangement, balancing the interests of the insurer and the insured is always an evolving issue.The sixth chapter is a detailed analysis of legal issues about the medical liability insurance from the perspective of specific systems. Firstly, we focus on the duty of disclosure. The circumstances of missing to report the data of health care providers and beds which affect the basis of accounting insurance rates.Whether or not to pay for the claim caused by medical negligence of a health care provider who is not on the list of the insured, that should depend on distinguishing whether the failure to fulfill the duty of disclosure constitutes aggravated negligence or deliberation and respectively apply to different legal consequences.The insurer should settle a claim if he fails to fulfill the obligation to investigate and verify the list of health care providers and the act that he doesn’t assert his right although he knows or ought to know that the insured fail to inform the significant item constitutes a waiver. The medical liability compulsory insurance company shall impose restrictions on the insurer to terminate the insurance contract and the insurer may settle a claim after requiring the insured to pay for the premium according to the consideration and balance principle. Secondly, we focus on the obligation to notify. Whether the hospital fails to notify the insurer as the risk increase so much that constitutes significant item should combine with medical risk and impact on revenue of hospital and so on to make a comprehensive judgment. There is a typical dispute of medical liability insurance about the conflict between the notice of loss and the control over defense.The judgement standard "possibility of knowing an accident"that the standard terms set is a subjective judgment and should distinguish the difference between medical damage occur and insurance accident. On the judgment about integrity of the content of the notice is to take it as a standard that the insurer is able to know or able to know if he inquires.If the insurer asserts that he exempts from the responsibility of settling a claim,he shall prove that the insurer’s failure to give notice is intentionally or constitutes gross negligence and thus lead to the insurer refusing to settle a claim,the patient may be unable to obtain timely relief, so the insurance company may compensate the patient ahead of time and then recover from the insured according to the principle of protecting the interests of victims.Third, we discuss the obligation of the insurer and the insured to cooperate.Legal basis for the obligation to cooperate is a relationship of trust and to prevent the insured and the victim conspiring.The act of obstruction of evidence,for instance,the insured deliberately tampers medical records,should be distinguished from deliberately leading to the accident happen and whether to settle a claim or compensate by proportion should be depended on the subjective aspect of the insured’s violation of obligation to cooperation.If the lawyer employed by the insured finds some information which is disadvantageous for the benefit of his client and may lead to the insurance company refusing to set a claim while the insurer is unaware of this,he doesn’t have the duty to disclosure on the grounds that the lawyer’s duty of loyalty to his client has precedence over the insurer’s obligation to cooperate with the insured.Patient has informed consent right and the doctor bears the medical ethics and legal obligations to truthfully inform the patient of his conditions,so if the physician tell patients the truth that his negligence lead to the injury,hoping to be understood by the patient and coordinate following treatment,the insurer may assert that the insured has constituted violation of the obligation to cooperate. If the insurer refuses to settle a claim,so his act is contrary to the public policy and the legal value that interests of patient safety is above everything.