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The Research Of Medical Damage Identification

Posted on:2010-10-21Degree:MasterType:Thesis
Country:ChinaCandidate:Y SunFull Text:PDF
GTID:2166360278474124Subject:Law
Abstract/Summary:PDF Full Text Request
Nowadays, with modern technology permeating the medical field, disputes of medical damage compensation have been increasing. Whether medical practice causing damage, causality related to damage, degree of damage are all important basis on which to judge the feasibility and amount of compensation. When several causes combined together lead to the damage, the proportion of each cause is also an important basis. And medical damage identification can solve all these problems. On account of the enactment of "Medical Accidents Disposal Ordinance" and "The Provisional Measure of the Technical Appraisal for Medical Accidents", China's current identification system of medical damage has established a system different from the one established by "Medical Accidents Disposal Measures" and has attempted to correct the defects in "Medical Accidents Disposal Measures". This has positive significance. But after detailed analysis, some problems still remain pending. Meanwhile, some new problems have also come up. There are still some defects in the system and procedure of our current medical damage identification system.This paper aims to balance the protection of doctor and patient's legitimate rights and interests as well as the promotion of medical development. Through the research on related concepts, history, legal characteristics of medical malpractice identification system, technical identification of medical accidents, classification and comparison of medical damage judicial identification and related systems abroad, this paper presents an analysis of China's current medical damage identification system. Based on the bold predication of future development, it puts forward some related rationalized proposals and measures.The first chapter deals with the definition of basic concepts involved in the occurrence and process of medical damage in order to clarify the relationship between them, including medical disputes, medical accidents and medical errors. Then it illustrates the historical development of identification system both at home and abroad, as well as the history of China's medical disputes. Thus a further description of historical development of medical damage identification system is presented in detail. Furthermore, it divides our medical damage identification system into medical accident technical identification and medical malpractice judicial identification. Based on the analysis of differences and connections between these two types of identification, the framework of our medical identification system is constructed.The second chapter conducts research on related systems in foreign medical malpractice identification, including expert-witness in British and American law system and judicial expert-witness in continental law system. Through the description of concepts, connotation, general rules and so on, it attempts to find out the advantages and disadvantages of the two systems and gives a brief analysis of its feasibility of in our country. These two systems are not only of great significance in evidence treatment of medical compensation suits, but also can fill in the gap of our current medical damage identification system. Meanwhile, we should make good use of their reasonable aspects.The third chapter points out many inadequacies in our medical identification system. And then it presents detailed analysis and evaluations and reveals its defects. Fist of all, the medical damage identification institutions lack unity, which mainly results in problems of multi-examination and re-examination. Second, it analyzes the improper connections between our current medical damage identification system and civil actions from several aspects. And it emphasizes the contents and form of our medical accidents technical identification can not meet the needs of civil actions. Meanwhile, the initialization mode of medical accident technical identification is contradictory to the principle of burden of proof. Finally, related provisions in the medical accident technical identification process are discussed in three aspects: evasion of identification experts, re-identification against conclusions of the first identification and administrative intervention on the fairness of the procedures.The fourth chapter presents the conception of improving our medical damage identification system. It includes three aspects: first, main body integrity of identification institutions should be improved. And the main body medical malpractice identification system should be built and the dominant position of Medical Association should be clarified. Second, reforms in connection with legal proceedings should be established. For example, the content and form of medical malpractice identification should be improved. The qualification and individual responsibility system of identification team leader should be clarified. And the practicing records of expert witness should be set up. Thus they can better coincide with the civil proceedings and better serve the trials and protection of rights of patients. Finally, medical malpractice technical identification procedures should be improved, including the improvement of initialization mode of identification and evasion rights of parties to expert witness, as well as increase of conditions on increase the party's cross-examination procedures and adjustment for re-identification.
Keywords/Search Tags:medical damage, identification, improvement
PDF Full Text Request
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