On Forensic Examination Of Medical Disputes

Due to different kinds of reasons, the contradiction between the medical institutions and the patients has become an uncompromising social problem. In order to solve more and more medical disputes, September, 2002, the Regulations for the Handling of Medical Accidents issued by the State Council came into force officially. Following closely, the Ministry of the Public Health also issued the administrative regulations of the Interim Procedures for the Technical Identification of the Medical Accidents and the Grades and Standards for the Medical Accidents (proposed).All those have given specific regulations on the administrative treatments to the medical disputes, the organizational institution of the medical accident identification as well as the identification process. But, with the strengthening of the social mass'right-protection consciousness, more and more patients and even the medical institutions are willing to get their medical disputes solved through litigation process. Upon this, 2003, the Supreme Court issued the Notice on Consulting the Regulations for the Handling of Medical Accidents to Try the Civil Cases Concerning with Medical Disputes (simple called Notice below), stipulates that medical compensation disputes causing by medical accidents occurred after the enforcement of the Regulations, and sued to the court, consult the concerning provisions in the Regulations to handle. As for the civil trial, whichever needed to be medical accident identified, abide by the parties'applications or the courts'decisions upon their power, the courts should deliver them to the concerning medical society to identify. As for other medical compensational disputes, which needed to be identified, abide by the Management Provisions on the Forensic Authentication of the People'Courts'External Authority for the Forensic Authentication to carry out. As for our laws haven't stipulated specific medical dispute forensic authentication institutions, the identification for the medical disputes'special problems mainly carried out by the medical accident technical identification groups formed by the medical society. For the time being, some provisions on the medical accident technical identification in the administrative laws and regulations as well as the administrative rules have lots of conflicts and contradictions with the concerning provisions in the civil procedural law. Medical disputes belong to one of the civil tort disputes, whether constituting medical accident or not are not the deciding standards of the civil tort, therefore should abide by the concerning provisions in the Civil General Rule and the concerning judicial interpretations and take the medical institutions' fault or not for the standards. Upon this, our medical dispute identification system needs to be reformed and perfected badly in order to coordinate with the concerning technical systems stipulated by one of the civil law and the civil procedural law. In this thesis, the writer would like to, through analyzing the present situation and defects of the present medical dispute forensic system, approach the perfection of the principles and specific suggestions so as to improve the medical dispute process' impartiality, publicity, efficiency and to establish the harmonious relation between the medical institutions and the patients.This paper consists of three parts: leading words, text and conclusion .Whereas the text consists of four chapters.The first chapter is the basic problems relating to the medical dispute forensic authentication. First, the writer defined some basic concepts such as medical dispute, medical fault, medical accident, medical dispute forensic authentication as well as the medical accident identification. Following, she analyzed the differences and relations between the medical dispute forensic authentication and the medical accident identification. Medical dispute forensic authentication consists of medical accident identification and the medical fault identification. As for its quality, the medical accident identification relating to the legislation belongs to he medical dispute forensic authentication, whereas for those non-medical accident, can take into medical fault identification. Following, the writer introduced chiefly the historical development of China' medical dispute forensic authentication. Finally, starting from the benefits to achieve the judicial impartiality and protect the parties' right, the writer discussed the aim to study the medical dispute forensic authentication.In the second chapter, the writer expounded thoroughly the present situation of China' medical dispute forensic authentication. First, introduced the models of China' medical dispute forensic authentication. Although authenticating some social forensic authentication institutions to authenticate exists, to carry on the medical accident identification formed by the medical society is also more. Therefore to introduce the present situation of China' medical dispute forensic authentication system must be started from the introduction to the present situation of the medical accident identification. As for introduction and analysis of the present situation of the medical accident identification, they consist mainly of the subject of the medical accident identification, the quality of the expert conclusion, the examination and corroboration of the expert conclusion and so on. Following, the writer analyzed the present situation of the medical fault identification, explained the reasons why the medicolegal expertise center cannot undertake the medical dispute forensic authentication.In the third chapter, the writer analyzed comprehensively the defects existed in China' medical dispute forensic authentication. For the time being, there's no unified system of medical dispute forensic authentication or legal institution of medical dispute forensic authentication.As the medical accident identification is now the principal way of the medical dispute forensic authentication, in this chapter, the writer took chiefly the medical accident identification for her object, analyzed the defects existed in the aspects of identification subject, process and the verification document. Meantime, the medical society is the organizer of the medical accident identification , its neutrality is difficult to protect, for the medical institutions are its members; besides, the collective responsible system of the identification is also conflictive with the provisions of the identification, the examination of the identification materials, the constituting of the subject group of identification experts and the process to choose the expert group have also some problems. The defects of the panel system are that there's no person to be responsible for the expert conclusion, systems of cross-examination of the expert conclusion and the identifiers' appearance before the court to give evidence lack. Upon this, the judges have no way to get the experts' opinions and thus are not easy to determine the weight of the expert conclusion. Neither its form nor its contents of the verification document have met with the requests of the forensic authentication document.The fourth chapter are the conceptions to perfect China's forensic authentication system concerning medical disputes. First of all, the writer established some principles for undertaking the medical dispute forensic authentication, then gave the suggestions on setting up a unified forensic authentication system concerning medical disputes. The detailed opinions consist of: make the forensic authentication institutions of the medical disputes become more neutralized and more independently, to perfect the forensic authenticator system of medical disputes, establish the registration system of the authenticator qualification, take the authenticator responsible system, make definite the evidential duty of the authenticator, set up the responsibility investigation system for the mistaken authentication., lay down unified, public and detailed authentication standards, reform the starting process of the authentication, allow the parties to apply for authentication, perfect the expert group' subject constitution and the style to choose the expert group, make clear the conditions to re-authenticate. Besides, either the form or the contents of the expert verification document should come with the forensic expert document, the examination system of the expert conclusion should be perfected. And we also should use the experience of other countries for reference to establish the systems of the expert juror and the expert witness so as to guarantee the objective and the impartiality of the expert conclusion' cross-examination and corroboration.