Study On The Improvement Of Compensation Against Damages In Medical Care In China

Comparing to Western countries, the legislation of Medical Damage Compensation System in China starts relatively later and develops slower as well, which owns a relatively single system. Before1987, the regulation about Chinese medical damages can be only sporadically found in the relevant provisions of laws and administrative regulations, which is not perfect and united. In June 1987, taking the " Procedure for Handling of Medical Accidents " issued by State of Council as a symbol, our legislation formally started the exploration and improvement of medical damages, but "Procedure for Handling of Medical Accidents" and "Regulations on Handling Medical Accidents", re-enacted on September 2002 shows the limitation of departmental benefit. The scopes of compensation are still limited to medical malpractice, and the compensation standards are lower than the regulations of civil law and judicial interpretation, such as "General Principles of Civil Law" implemented on May 1987, and "the Interpretations of the Law on Trials of Cases about Personal Damage Compensation" issued by Supreme Court introduced in 2001. The conflict of Legislation and the flatter of justice lead to serious disorders, and greatly damage the authority of the law, set the Medical Damage Compensation System fall into a binary form of the cycle consisting of three two-track system, namely, taking the chief regulations of" Regulations on Handling Medical Accidents", and "General Principles of Civil Law" and other civil law as well as judicial interpretation as the basis of application, forming the three two-track systems, including the cause of action, standards and range of the damage compensation and the identification. And the imperfect of medical system, basic social security system and medical liability insurance system also cause the conflicts between medical institutions and people receiving medical services which are difficult to be effectively facilitated and eased. The introduction of "Tort Liability Law", to some extent, solves the dual problems of medical damage, makes clear the medical damage liability and other related conceptions, defines the criterion of medical damage liability and the appropriate scope of medical disputes. Because the limitation of the article and the restriction of the system, it can't give the compensation comprehensive and detailed specifications and some contents are imperfect. On the one hand, the provisions' setting in "Tort Liability Law" on medical damage liability need discussing such as the 58th Article on the provisions of "presumption of fault liability", the 63rd section on the provisions of "over-inspection" and the 64th Article on " the phenomenon of medical troubles". On the other hand, the important damages of medical problems, such as the burden of proof, judicial expertise and other issues on "Tort Liability Law" are not involved in. So the legal system of medical damage compensation still needs to perfect. First, Give the clear judicial interpretation for the issues not involved in on "Tort Liability Law" as soon as possible, such as the allocation of the burden of proof, the determination of concept of medical standards and the starting limitation of actions, etc.; Secondly, build up the specialized "medical law" and regulate the medical actions as well as the various legal relationships between medical institutions and medical services; Third, establish the special "Judicial Expertise Act" to regulate the identification methods, conclusions and legal liability for the medical damage compensation liability; Fourth, perfect the trial institutions and personnel, arrange the specialized medical trail institutions and personnel and select the medical experts as the trail personnel involved in the trail of the cases to ensure the trial quality.Meanwhile, the perfection of Medical Damage Compensation System cannot be fulfilled only by a single legal system, which requires the simultaneous development of supporting institutions, such as improvement of basic medical security system and development of multiple ways in dispute settlement mechanisms. For dispute settlement mechanisms of Medical Damage Compensation, in addition to the consultation, administrative mediation, civil action, as the way of mainstreams, the currently, there are solutions for medical liability insurance in China. However, the three main approaches have their own advantages and disadvantage, moreover, the development of medical liability insurance is slow and almost stagnant. By other's faults, wise men could correct their own. Our medical liability insurance system, based on fully used the development experiences and lessons from the United States, Britain, Japan and other nations, combines our own reform of health care, judicial practice and other specific conditions, to be developed and refined further. The content includes the confirmation of the model of implementation and principle of compensation, the insurance applicant and style of insurance, insurance coverage and clarification on standards. In addition to perfect the original dispute resolution mechanism, professional arbitration body of medical Damage compensation can also be established to broaden the way of the medical dispute resolution and to reduce pressure of litigation, as well as can using professional resources to verdict the medical indemnity dispute efficiently and fairly. Medical damage compensation's arbitral authority shall be composed by medical professionals and legal professionals. The relationship with the.civil law and legal responsibility of arbitral authority and the arbitrator should be clarified also.China's Medical Damage compensation system is a systematic project, which requires join forces of all social circles. In addition to improvement of the legal system, it also contains the common development of the social security system, social insurance and health care system, and medical treatment and public health.