Study On Legislation Defect In Regulation Of Medical Malpractice Settlement

With the overall establishment of market-economy and the extreme great recovery of the sense of rights and humanism in recent years, the relation between hospital and patients which used to be holy and harmonious met unprecedented crisis. On one hand, the patients complained a lot. On the other hand, the hospital could not explain itself well in a clear way. The patients complain that the past laws and regulation of medical malpractice which mainly refers to Document of Medical Malpractice Settlement that took effect on 29^th June ,1987 has a suspect of strong unfair favor on hospital so that their legitimate interest could not be effectively protected when the medical dispute or the malpractice take place. While the hospital argues that medical science has it's own characteristic, the consequence of physical injury is indispensable from the uncertainty and high risk. And the present laws and regulations is exactly the right response to the characteristic of medical science. Owning to the intense conflict between hospital and patients and the disadvantage that the Document of Medical Malpractice Settlement is lag behind time and could not adjust timely the relation between hospital and patients, the present Regulation of Medical Malpractice Settlement came into being on 1^st Sept,2002.Since Regulation of Medical Malpractice Settlement took effect on 1st Sept,2002, it plays a very important role in regulating the medical behavior ,keeping a balance of the rights and obligations between hospital and patients and alleviating the social conflicts. But undoubtedly, just like the developing pattern of other laws, the regulation is not perfect in all aspects. The regulation also obsesses the character of developing with the changing time as well as the limitations of law such as conservative tendency, omission and lagging behind time. The emphasis of the paper lays on the legislation defects of the regulation so as to propose legislation suggestion in constructing a more harmonious relation between hospital and patients.This thesis is divided into three chapters, namely, history study of medical malpractice settlement and legislation background of the regulation; comparative legal study on medical malpractice; legislation defect of Regulation Medical Malpractice Settlement.Chapter one is history study of medical malpractice settlement and legislation background of the regulation. Section one introduces legal settlement on medical malpractice in ancient China. The earliest record of medical institution in China can be seen on the book of Zhou Li. But the medical institution which has a rather complete legal institution started in the dynasty of Sui and Tang. Many parts of Tang Code mentions medical institution and the stipulation of crime and punishment for medical malpractice. In a more strict sense, however, the ancient regulation mainly concentrated on administration and criminal regulation, it is not the settlement of medical malpractice in modern sense. Section two introduces legal settlement of medical malpractice in modern history and contemporary age. There are few records about medical law in modern history. The author summarizes the periods of the settlement of medical accident and dispute from the founding of the People's Republic of China in 1949 to 1st Sept,2002 into the following five different periods as follows: period with criminal character; period with pure administration character; period with no existence of law; sprouts period with the combination of civil and administration character; period with the combination of civil and administration character. Among the five periods, the author makes a key introduction on mature period with the combination of civil and administration character^ which refers to the period when Document of Medical Malpractice Settlement took effect) and points out the focus of controversy at that time and the legislation defect. Section three discusses the legislation background of Regulation of Medical Malpractice Settlement and the introduction of the stylistic rules of the regulation.Chapter two is the comparative legal study of medical malpractice settlement. Section one discusses medical malpractice settlement in Anglo-American law. There does not exist single-issued regulation of medical malpractice settlement in Anglo-American law. Medical malpractice is mainly settled according to the application of the act of tort. This section mainly discusses the following contents: constituents of tort in medical malpractice in Anglo-American law; the standard of attention obligation for expert liability; burden of proof; appraisal of medical malpractice and exception clause. Section two discusses medical malpractice settlement in continental law. The applicable law of medical malpractice settlement in continental law is also law of tort. As for the reason of medical malpractice appraisal, however, continental law is different from the appraisal pattern of Anglo-American law which is featured by wide demand for expert examiner and adoption of antagonism in trial in terms of the method of examining right it adopts for the qualification of expert examiner. What's more, the initiation of the appraisal procedure relies mainly on the behavior of the judge according to functions and laws. Section two also makes a brief introduction for the functions of medical malpractice mediation division inGermany and compensation office of national medical malpractice in France. Section three discusses medical malpractice settlement in Japan. Japan demonstrates many features different from continental law system in medical malpractice even it is affiliated to the law system. This section explains the definition of medical malpractice, medical mistake and medical negligence in Japan. The concept of medical mistake equals to the concept of medical malpractice in our country. The most popular standard of care obligation in medical tort is the theory of medical level in Japan. Apart from the consultation between the parties and judicial resolution for medical malpractice, there is also a medical dispute settlement committee which can take part in the resolution of medical malpractice. Section four mentions medical malpractice settlement in other countries.Chapter three which discusses the legislation defect of Regulation of Medical Malpractice Settlement is the key and major chapter of this thesis. This chapter consists of the following eleven sections: defect of procedure initiation for the first and second time; the defect of the ground of pleading; the defect which conflicted with the Legislation Law; judicial conflict; dilemma of medical malpractice appraisal and judicial appraisal; lack of the relevant laws and regulations; dilemma of the right to know and agree and the compensation, dilemma of the compensation field; defect of the opening system of medical history. The author analyzes the defect of this administration regulation in many aspects, such as substantive, procedure, jurisprudence, judicial practice and so on. At the same time, the author also explains his claim in legislation and proposes suggestions for future legislation. Among the suggestions, the theory of three constituents of medical tort, the legal connotation of the right of informed comsent, opening system of medical records,secend appraisal conclusion"no appealing resulting in additional punishmenftheory construction is the author's creative viewpoints.