The Pondering And Reconstruction Over The Identification System Of Medical Disputes

With the increasing development of the market economy and the deepen reforms of the medical system in China, more and more medical disputes and the contradictions between the doctors and patients would be the social focus. And how to handle with these disputes and contradictions would be the urgent demand of the social issue. In the process of the medical cases, the identification of the medical disputes would be the key point to win or loss of the radical evidence. So how to perfect and improve the identification system of medical disputes had been the hot topic around the public. Hence this paper tries to summarize the historical changes of this system in China and to ponder the construction of the system based on the current system in China.So the whole text is divided into four parts:Part one is the introduction of the identification of medical disputes and the relative concepts which is including the medical actions, the medical disputes, the medical injuries, the medical accidents, the violations, the technological identification and the judicial identification.Part two is the reviews of the historical changes in Chinese medical disputes identification system. Since 1987, the central government promulgated and enforced the Regulation of Medical Accidents as the beginning, there are formally four stages: the establishment of the system; the interference of judicial medical identification; the reforms of the system and the establishment of double-identification system, which is shaped as the medical accident identification as the guider with the judicial medical identification as the auxiliary that the double-identification system.Part three is to analyze the existing problems about the current two medical disputes and the ponderings about the system.And the problems in the medical accident identification are the following: the essential demand as the administrative one but not the judicial one; the Medical Association and the experts lacking with the neutral or independent status as the subjects of the identification; the experts without the relative identification and legal professional skills; the non-signature of the experts on the conclusion; the non-hearing of the experts and the blank rules about the faults and the punishments of the experts and the MA. While the judicial identification system would avoid the defects above, the judicial doctors are usually lacking of the medical practices to question their capacities to accept the medical disputes identification tasks.Moreover, the main reason that almost courts in China adopt the conclusions by the professional medical accident identification would be that the double-system of the medical compensation; the authority of the experts and the MA; the advanced progress in these techs. But all of these could not cover all the real problems in the identifications.Part four is the review of the academia's point around the world to analyze the reconstruction of the medical identification system.The points would be clued into the two aspects: the unit one and the double-competition. The former one insists to construct the united medical identification system to handle all the professional medical problems in one agency. One side supports the MA as the unique agency and the other supports the independent social agency to do these works. And the later one insists to let the judicial identification agency to make the medical disputes identification which is fit for the designation of the characters of judicial identification and to meet the needs of the civil procedures and remain the space of the judicial identification to break the monopoly of the MA.Therefore, the author considers that the root of the double systems would be the misplace functions of the medical accidental identification and the key point to reconstruct the system is to make the duties back to the position that the medical accidental technological identification comes back to the functions of the administrative and professional rules; and the medical disputes litigations backs to the market of the real judicial identification. They all do their own works and the duties would be called as the"Backward of doubly system". And its theoretical design would be following three steps: one is to exclude the medical accidental technological one from the judicial one; two is to remain the former on for the MA; three is to make the medical disputes litigations as the united identification. And as the selection of the subjects, the author disagrees with the MA or the social agencies as the subjects but to the judicial identification agency's professional judicial doctors with the assistant of the invitation of the practical experts as the advisers or the assistants. At the same time, by the perfection of the relative systems and measures including the classification of these business, the identification of the judicial identification, the procedures and the hearing or the judge professional exams, the fees or the prepayment of the hearing, the correction, the self-identification, the wrongdoer responsibility and the database of experts to guarantee the scientific and justice results at best.Through the reconstruction of the system, the author attempts to establish one idealistic model to fully embody the checks and balance medical disputes trial process, which could change the situation of weaker patients and stronger doctors and hospitals, the weaker judges and the stronger experts to trend the side of medical one in order to find out the facts effectively and to improve the levels and quality of these trials and finally to guide the medical disputes into the legalization path to modest the contradictions between the doctors and patients or the"medial fights"to get the win-win situation.