A Study On The Legal System Of Expert Evaluation Of Medical Malpractice In Our Country

With the development of the economy and the progress of the society, the people attach importance to the safety and quantity of the medical service more and more, at the same time, the consciousness of right also strengthens continuously, so the number of medical malpractice dispute increases. The expert evaluation of medical malpractice avails to confirm the liability, so it is meaningful to settle medical malpractice dispute and protect the legal interests of the two parties. But the defects of the expert evaluation institution, the expert witness, the expert evaluation procedure and the expert conclusion exist in the present legal system of expert evaluation of medical malpractice in our country. This thesis analyzes these defects, combines the experiences of the foreign countries with the conditions of our country and puts forward some improving suggestions. This thesis is divided into three chapters. The first chapter discusses the general introduction of the expert evaluation of medical malpractice. The expert evaluation of medical malpractice is professional activity. The expert witness makes use of medical principles and professional knowledge and discriminates and judges the medical malpractice. In the medical malpractice dispute, the expert evaluation of medical malpractice is the link of the key to confirm the liability and settle the medical malpractice dispute. In the medical tortious lawsuit, the expert evaluation of medical malpractice is the most important evidence source for doctors. The principles of expert evaluation of medical malpractice are divided into the general principles and special principles. The general principles include the principle of independence, the principle of being pursuant to law, the principle of taking fact and science as basis and the principle of objectiveness and justness. The special principles include the principle of medical urgency, the principle of medical level of that time, the principle of region, the principle of hospital grade, the principle of differentiating compulsory standard of diplomate and general doctor and the principle of doctor's discretion. The second chapter analyzes the defects of the expert evaluation institution, the expert witness, the expert evaluation procedure and the expert conclusion in the present legal system of expert evaluation of medical malpractice in our country after the history is looked back on. The problems in the expert evaluation institution: the Medicine Association lacks enough neutrality because it not only has strong administrative color but also inclines to protect the benefits of the profession; the Medicine Association is not entitled to make expert evaluation because it has not the expert evaluation license. The problems in the expert witness: the members of the expert evaluation team are not entitled to make expert evaluation because they have not the expert evaluation licenses; the members of the expert evaluation team lack the law knowledge, but they need the law knowledge in making expert evaluation; it is the expert evaluation team that is responsible for expert evaluation, so the members do not use prudence; the members of the expert evaluation team do not appear in court,so the expert conclusion can not be cross-examined well. The problems in the expert evaluation procedure: there are some defects in the way of the start-up of the initial expert evaluation and the expert evaluation for the second time and in the concrete rules of the new expert evaluation. The problems in the expert conclusion: the expertise report has some defects; in the judiciary practice, some expert conclusions have evidence ability without examination and the proof ability is affected by the way of the start-up of the expert evaluation and the grade of the expert evaluation institution. The third chapter discusses how to improve the legal system of expert evaluation of medical malpractice in our country. It combines the experiences of the foreign countries with the conditions of our country and puts forward some improving suggestions in six aspects. First of all, the Expert Evaluation Law should be made unifying all expert evaluation systems including the system of expert evaluation of medical malpractice. Secondly, the neutrality of the Medicine Association is ensured through liability system and competition mechanism. The Medicine Association should undertake the liability of compensation when the conduct of expert witness results in the loss of the client. We can build up some completely independent expert evaluation institutions that have nothing to do with the government. The clients can choose among these expert evaluation institutions and the Medicine Association. Thirdly, the system of the expert witness should be improved. The qualification system of the expert witness should be built up.