Study On Medical Arbitration Mechanism Based On ADR Theory

ObjectiveBased on understanding the Dispute Resolution Theory and Alternative Dispute Resolution Theory, to have a overview of medical disputes and the related law system and resolution system. To analyse the importance ,suitability and efficiency of ADR,especially arbitration, in resolving patient-doctor tangles, then to demonstrate the feasibility of medical arbitration, and give a frame of a possible medical arbitration mechanism.MethodsThis study have applied these social science methods: literature study, expert consulting, questionaire survey, semi-structured interview, descriptive medical statistics, Semantic analysis of law, stakeholder analysis, theoretical analysis of sociology and public policy making.Results1. Difficulties of resolving medical disputesMedical disputes are considerably increasing yearly and conflicts become more and more fierce. In this context, the dispute-resolving capabilityof society can not meet the need of people concerned in medical disputes. Three resolutions are formally formulated currently, they are negotiation, administrative mediation, and litigation. However, all of three are proved inefficient. Negotiation is chaotic and prone to pacificate, accident identification is incredible, administrative mediation secund, litigation complicated and time-consuming, executing of judgement hard and compromising.Difficulty of disposing disputes lay a heavy burden both on hospital's reputation and financing, and on patients' life quality and family economy. Furthermore, it is doing harm to our harmonious society.As a result, we could not but reconstruct the mechanism of resolutions.2. Alternative resolutions to litigation is effective in handling most medical disputes Litigation has some disadvantages like long rigid and complex processes, defective law system. Especially in transition period, disputes are spawning and conflicts emerging here and there , make it a hard task for court to take after everything. ADR is voluntary, confidential,swift, harmonious,plastic and adaptive, which advocates parties' autonomy,respect their rights to dispose their own interests. It is accordant with notion fo governance in modern society.Medical disputes concerns parties' private interests, and is classified as civil disputes. Besides, it is exclusive in specialty, with complexity and unpredictability of medicine. Thus, medical disputes are appropriate to be treated by ADR.3.characteristics of arbitration and its essenceArbitration is supposed to be triggered by consensus, not be processed openly, swift and extendible. It contains four essential component: flexible gist, arbitrated by non-judge third party, informal concise procedure, not disposed openly.4. Medical arbitration is legal and justifiedArbitration is designed to deal with disputes between equal civil subjects, and judge private interests, mostly property. Parties must have total right of disposing concerned interests, and have full capacity for civil conduct. Medical disputes are conflicts between equal civil subjects, and are concurrent disputes of contract and infringement, which is suitable for arbitration. And the current arbitration law does not exclude medical dispute. Furthermore, western countries have been applying arbitration in medical disputes for long.5.unique advantage of arbitration in medical disputes disposingArbitration is flexible compared with litigation and can be a substitute for litigation to divert the exploding conflicts in a transforming society. Compared with mediation, arbitration possesses all characteristics of mediation with extra advantage of determination when intervened negotiation does not work. Arbitration corresponds with the spirits of modern society, such as autonomy and constitutionality, helping to cultivate the habit of self-governance of civil society and promote the mature of a harmonious society. Finally, medical arbitration meets the conditions of a just and trusted medical dispute resolution: professional, fair and authoritative.Conclusions1.current medical dispute resolution system has a loose structure and compatible with arbitration.Negotiation, administrative mediation and local experimental alternative resolutions , most of which are mediation, are competing to serve the need of appeasing conflicts. Although these practices enrich the knowledge of dispute resolving, none of them win out after all, which give a opportunity to arbitration. The premises is that there is no law or regulation of alternative resolution in medical disputes repulsing medical arbitration.2.the foundation of medical arbitration benefits most of stakeholders,government will be persuaded to try arbitrationIt is found in stakeholders' analysis that none of stakeholders oppose running of medical arbitration. The most substantial role in founding medical arbitration is the local authority, who with the imcomparable influence and resources to construct and a responsibility to serve the people, also has contradicted altitudes, partly willing to try a better method to minimize medical conflicts, partly doubt and hesitant about the actual consequence of medical arbitration. However, by the lobbying of academic institutions and non-governmental organizations, local authority is going to be firm and brave.3.medical arbitration has a risk and is not the optimum of a cautious governmentMedical mediation and medical arbitration both belong to the third-party ADR, and are substitute for each other. The point is mediation has been practiced in some districts and has a plentiful knowledge, while arbitration has barely any practice and has a greater uncertainty. Second, enormous resources have to be input to found the new medical arbitration, with a uncertain effect. It is for this reason the government is not quick in deciding founding medical arbitration.4. The contradiction between supply and demand of social dispute-resolving service will push the authority to try medical arbitration in real world It is a instinctive demand of a society to resolve disputes and retrieve harmony. There are organizations constituting dispute resolution system which can be seen as suppliers, provide social service to meet this need . The need of society to appease conflicts in doctor-patient relationship has not been satisfied by current dispute-resolving service. Consequently, this contradiction between supply and demand is a interior strength to drive the policy-maker to choose medical arbitration as a public policy.5. Medical disputes fall into three grades and a three-level resolution theoretical model is established accordingly.Medical disputes mainly fall into three grades considering the grade of physical impairment, clarity of medical service course, evidence of practitioner's fault and grade of contradict between two parties. Different grade of medical dispute requires different type of resolving service. Thus, a model of three-level resolution are correspondingly erected. Negotiation suits mild level dispute, leaving moderate disputes to be resolved by third-party ADR like arbitration and mediation. Remained disputes are severe level which have to be resolved by litigation.Proposals1. A design of medical arbitration mechanismA possible medical arbitration is one which intervenes right after dispute emerges in hospital, mediation should be used before arbitration of consensus. While medical liability insurance should be generalized, every state-owned hospital must join in. The general process of medical arbitration is as bellow: first a application for intervention is received and registered, mediator and medical expert are send to site to investigate and intervene, then moderate and severe level disputes have to be further identified and mediated in medical arbitration committee, after that arbitration will be used with both parties' agreement. After mediation or arbitration an arbitrament is given about compensation, which is insurance company's responsibility to pay for.The type of corporate of medical arbitration is non-governmental organization. However, it is government's responsibility to provide infrastructure and hardwares, and together with insurance company to funding medical arbitration committee (MAC). MAC is supervised by social organizations like Patients' Rights Association and Arbitration Association, and by government and insurer as patrons.2. A design of medical arbitration structureA frame is designed about inner organization structure and exterior structure like cooperative organizations, supervisors and patrons. The inner sections' work specification and programme of resolution are also designed, including the link between arbitration and litigation.3. Fourteen terms of public policy proposalsThese 14 proposals concludes that academic institutions and arbitration committees should influence government's decision; civil society should be cultivated and advocated such as the foundation of Patients' Rights Association, these NGOs are supposed to take part in public policy making , executing and feedback; government should establish a high ranked preparatory committee to facilitate MAC; departments of nation's sovereign powers like CPPCC, People's Congress, court and government's sections like police, health and justice department should work together to insure the effectiveness of MAC; do a good job to pool human resource and funds; a good cooperation with insurer; pilot running of medical arbitration; a good social marketing for medical arbitration; perfect the related law system especially about the legal position of ADR and amend the medical accident identification.