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Discussion On The Mechanism Of Medical Disputes Mediation

Posted on:2009-02-07Degree:MasterType:Thesis
Country:ChinaCandidate:J ZhangFull Text:PDF
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Medical disputes are inevitable because of the natures of medical treatment:specilization and high-risk. In recent years,the number of medical disputes is rising with the increase of patients'awareness of health and rights. How to resolve medical disputes effectively, to build a harmonious relationship between doctors and patients become the topic for which scholars show general concern.Taking mediation as a breakthrough point, this paper attempts to probe medical disputes settlement mechanism,via the methodology of combining theoretical research and empirical analysis .In the first chapter,this thesis defines some concepts related to medical dipute and then analyses main types,natures and characters of it.Medical dispute refers to a dispute between medical service providers and medical care seekers,who are not satisfied with the medical services.Then the introduction and discrimination to the concepts of medical incidents, medical damages, medical accidents, complications of diseases and the natural outcome of diseases, lay the foundation of following theory discussion.Medical disputes will be divided into three types, namely, iatrogenic disputes and non-iatrogenic disputes, sudden disputes and moderate disputes, medical infringement disputes and medical services disputes.As a special civil dispute,an abnormality of of the doctor-patient relationship,medical dispute is characterized by ethical factors involved,specialization,complexity and high incidence.In Chapter II, this thesis explains the concept of mediation, its values and history in China and analyses its comparative advantages over other dispute solutions. And then from the angle of substantiation,it probes the status of medical dispute mediation. Mediation refers to the act that a third person,based on the facts and social customs, contributes to the exchange of information, mutual understanding, mutual compromise and a consensual resolution of disputes between the two parties.The mediation revolves around interest and advocates a compromise between the two parties.Mediation has a long history in China. By the profound influence of Confucianism, in ancient China, mediation played an irreplaceable role in resolving civil disputes. Mediation has its unique superiority over other dispute solutions.First,it's efficient and ecnomical.Medical dispute can be easily settled by mediation if the two parties come to an agreement,dispensing with many regulations on substantial and adjective law. Even evidences and truth shouldn't be paid more attention,so as to avoid the problem of identification in dispute resolution.Mediation can also save many costs, such as counsel fees,legal cost,expert fees,etc.Second,compared with litigation, mediation is more convient and flexcible in resolving medical dsiputes. Mediation is not rigidly adhere to the law,so socail ethics could also be used as a basis. And various flexcible ways could be used to help the two parties eliminite barriers.Third, unofficial organizations, especailly medical organizations, could paly a role in medical dispute mediation,with their talents,konwledge, and authority to resolve medical disputes.Atlast,compared to cnciliation,mediation organization,as a neutral third person,could make the patients who are in a weak position feel no longer isolated;mediation is more neutral than the Administrative Adjudication;the privacy of the patients could avoid being exposured through unpublic mediation.At present,there are lots of mediation organizations on medical dispute and their living conditions are different.Through the inquisition,we concluded that there are four essential factors to run a mediation organization successfully : finacial resources,talents,neutrality,and anthority.The third chapter introduces the experiences of medical dispute mediation in Germany, Singapore and Taiwan. No exception, mediation plays an important role in resolving medical dispute among the three areas. (For example, in Germany, the Association of Individual physicians in one state alone or several of them together established mediation organization,responsible for the solution of medical incident out of court.Singapore has set up medical dispute resolution centre and the Government encourages through mediation to resolve medical disputes. Besides accepting the mediation request which both sides of the medical trouble proposed, the mediation center also accepts the medical negligence dispute cases which the court transfers, and the success rate of mediation is very high.Integrate the experiences of the three parts, we can summarize some illuminations: 1.The level of social medical welfare impact the people's choice of solution of dispute.2.The neutrality of mediation organization determines the result of mediation.3.The government's heavy emphasis on medical disputes mediation is one of the prerequisites for rapid development of mediation.4.When choosing the solution of medical dispute, people always trend to seek the positive and avoid the negative.5.Cultural tradition and structure could influence people's choice of ways to resolve medical disputes.The development of domestic medical dispute mediation should use the outer experiences for reference and draw emphasis from government.The forth chapter suggests to establish a mechanism including prior prevention of medical dispute, resolution when it happened,and coordinated communciation mechanism. Mediation is only one of the ways of resolving medical dispute, as well as one of the parts of dispute settlement.Mediation of the disputes need the establishment of corresponding social mechanism for health risk. (The insurance is an essential method of risk management under the market economy condition,an important component of social security system and it has the the functions of economical compensation and social management. To transform and melt medical risk with the purchase of insurance is an international common practice.The medical liability insurance and the medical accident insurance shift the medical disputes to the courtyard outside, avoid both's direct resistance, form an intermediate area between the two parties, favor to determine the responsibility and bring benefits for the mediation work..Payment is generally the following work of mediation and is also the final point of resolving dispute. The Insurance company shoulders the compensation responsibility to the trouble side, and relieves extra worries of the mediation work.Further more, dispute can not only depend on the solution afterwards, but also require the prior prevention.On one hand,the hospital must strengthen the control of medical service quality,raise the medical service level; On the other, autonomous organization and self - discipline system in medical industry need to be established to undertake the function of participating medical service dispute resolution. Last, improvement of supporting systems is favorable for mediation to play the role. In a sense, medical dispute is not only the issue of medical institutions, but also becomes a social problem.It needs each department of society to shoulder some responsibility, such as the police, civil administration organs,the mass media etc.Mediation is only a link of dispute-solving mechanism. The variety and complexity of dispute require the resources of solving dispute should be rich enough.The modern society is a multiplex one,the multiplex values and rules offer us many choices.Because of this situation,the way of solving the medical dispute is not single,the author advocates to build a multiple mechanism for solving the medical dispute which takes mediation as dominant,reconciliation and arbitration as complementarities,the litigation as the final legal ensurence.
Keywords/Search Tags:medical dispute, mediation, prior prevention, resolution afterwards, coordinated communciation mechanism
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