Dual-track System Applied In Medical Damage Compensation And Its Reform

Medical damages not only harm directly people's lives and health but also bring patients and their family members mental pain and property loss. Moreover, the normal operation of medical unit would be seriously affected, at the same time, the fame and property of medical unit and its personnel would be greatly hurt. Just because the settlement of medical disputes has a so close connection with the interests of the patients and medical unit, medical order, security and society stability, this kind of cases have received universal attention. However, the present dual-track system applied in dealing with medical disputes has led to the tense and contradictory relationship between the patient side and medical unit side. Consequently, courts would find themselves in difficult situation to handle this kind of cases. This dissertation, which is integrated with judicial practice, begins with the causes and the process of the formation of the dual-track system, next analyzes different handling ways in practice and illustrates the author's view that the "Regulation on Handling Medical Malpractice"should be strictly obeyed, lastly proposes the supposition of the reform to the dual-track system. This dissertation has three chapters. The first chapter introduces in general the dual-track system in application of law for medical disputes. In the first part, the process of formation of the dual-track system in application of law is exhibited, also the background when "Procedure for handling of medical malpractice"and "Regulation for handling of medical malpractice"were promulgated is introduced, and the process of the formation of dual-track system's pattern and development is introduced, too. The official reply of the Supreme People's Court to Tianjin Higher People's Court for the Lixinrong medical malpractice case in 1992 indicated the primitive form of the dual-track system. And the notice from the Supreme People's Court, LAW (2003) No. 20 which is about handling medical disputes, built up the pattern of the dual-track system in application of law. Then the reasons of the formation of the dual-track system are analyzed. The above mentioned notice emphasizes: those medical disputes caused by medical malpractice are dealt with according to the "Regulation"; while the cases beyond medical malpractice are handled in accordance with the General principles of Civil Law. Thus with the clauses of the General Principles of Civil Law the medical unit could not be exempted though there is no medical malpractice. Chapter two focuses on the dual-track system in judicial practice. In the first part, the present status and characteristics of the dual-track system are exposed with two typical cases. In practice, the judges choose the General Principles of Civil Law or "Regulation"as applied law according to the reasons the litigants have proposed. The main difference between the two methods exists in the different choices of the appraisal conclusion. The former selects the conclusion produced by the medical committee and the latter resorts to the conclusion from the judicial organization. Another difference is different standards are applied. The amount of compensation in the former is comparatively lower with the standard and scope provided by the "Regulation"than that in the latter according to the General Principles of Civil Law. The last difference is the former could settle down the disputes more efficiently than the latter. In the second part, the influences of the dual-track system in application of law on judicial practice are analyzed from the angle of judicature and appraisal. Objectively speaking, the current dual-track system leads judicature confusing and makes contradict of the patients and medical unit more severe, which, conversely, also does harm the medical development. In the third part, the choice of application of law for disputes of medical damage compensation is discussed. Author insists on that the "Regulation on handling of medical malpractice"should be applied strictly. In other words, the courts should take the conclusion from experts organized by the medical committee despite of any reason of case required by the litigants. Undoubtedly, the standards of compensation in "Regulation"shall be used. Chapter three, on the basis of the above two chapters, proposes a supposition of the transition from the dual-track system to the single-track system in application of law for the disputes of medical damage compensation. Most of all, several considerations relating to the transition are illustrated to prove that the reform about the methods on handling of medical disputes should make a balance of interests of the two sides. To make sure of the smooth transition, medical malpractice should be redefined with an extension to include medical default since the current concept is limited with a strong color of administration. Moreover, some provisions of the Regulation on Handling of Medical Malpractice should be modified. For example, the provisions of the supervision and punishment on the medical personnel and those provisions of the exemption of medical unit should be abolished, especially the second clause of the 49th provision which is saying that medical unit is not responsible for the damages which are not produced by medical malpractice. Also, the appraisal system has to be mentioned to obtain a successful transition for the appraisal is the basis of handling of medical disputes. The present appraisal regulation should be adopted but need to be perfected and unified to indicate the justice of procedure. Finally, for the transition, a reasonable standard and efficient payment system should be produced as the core of the application of law for the disputes of medical damage compensation. The amount of the standard of compensation should be lower than that of the normal personal damage considering the particularities of this kind of disputes. As to the payment system, the insurance system and fixed payment system may be introduced. In addition, the procedure of arbitration could be tried to be applied. To sum up, through the introduction and analysis of the present dual-track system in application of law for the disputes of medical damage compensation, this dissertation proposes that the above dual-track system cannot catch up the development of the judicial practice. The system of compensation for the medical damage should be produced with a total meaning of civil compensation. To build up such a system, the interest of the medical unit and the patients as a whole should be considered as well as that of some specific patients to achieve a harmonious relationship between the medical unit and patients with the view of ethics value, law value, and market value.