Medical Dispute Resolution Mechanism

Disposing of medical dispute is a difficult problem for most countries in the world.Medical dispute resolution mechanism includes litigation and ADR which has advantages and disadvantages in resolving medical dispute. Although litigation has irreplaceable system value in protecting the right of patient and doctor,it has many unfavorable influences on patient,doctor and society.ADR has a lot of superiorities,but the use of ADR is restricted by lack of powerful supervisions and controls.This paper researches on medical dispute resolution mechanism and aims at perfecting medical dispute resolution mechanism in our country,by a method of comparison,compares and appraise the medical dispute resolution mechanism in the two genealogies of law,and analyzes the history and present of our medical dispute resolution system.Finally,by referring foreign system's experience and combining the situation of our country,this paper puts forward basic principles and concrete measures.Except for introduction and conclusion,this thesis includes four chapters:The first chapter:The basic theories of medical dispute disposing. Firstly,the paper researches the circumstance and reason of medical dispute resolution mechanism in our country.Secondly,it analyzes the advantages and disadvantages about litigation and ADR in medical dispute resolution. The expensive cost and unchanged process of litigation is very disadvantageous to resolve the medical dispute.However,low cost,quick measure and expertise system bring much advantage for ADR to dispose the medical dispute.At last,it describes the characteristics about resolving medical dispute at the present in our country,which show economics compensation,quarrel about rights and duties,enlargement use of judicature.The second chapter:The comparative study on the medical dispute resolution mechanism in the two genealogies of law.Except for America supporting litigation in medical dispute for one time,other three counties, namely British,which belongs to the common law system,Germany and France,Which belong to civil law system,all don't support litigation in medical dispute.Now,American are reforming their medical dispute resolution system and towards adopting ADR or making litigation more reasonable.It shows that there is no relationship between the medical dispute resolution system and genealogies of law,but it seems a little relation with the model of medical service.Of course,these four countries are developing towards use of ADR to resolving the medical dispute,and it will give us an important use for reference.The third chapter:The history and present of medical dispute resolution mechanism in our country.Medical dispute resolution mechanism in the period of《Banfa》mainly includes medical accident litigation system which imposes an pre-action by health administrator department and direct litigation system for only economics compensation. Health administrative process plays an important role in resolving medical dispute.The characteristic of this system in the period of《Tiaoli》is direct litigation,priority of judicial judgment,and combining a few ADR methods. Litigation has a dominate position and ADR is exploring in this period. Specially distributing of testimony liability,over using of compensation standard of civil law,and increasing adopting of judicial identification have brought much negative influence on medical service and social cost.In order to avoid administrative liability,the hospital has resulted in consultation some distorted.The fourth chapter:Advice of re-construction of medical dispute resolution system in our country.It discusses the system value of medical dispute resolution mechanism:health security;cost-efficiency;justice and fairness;proposes seven principles of reconstruction medical dispute system:prevention of medical injury;equal benefit of patient and doctor; combination of expertise priority and layman;unity of ADR priority and litigation;integration of punishment and education to doctor; comprehensive consideration of cost and benefit of individual and society; and combination of litigation and ADR' situation.Finally,this paper puts forward concrete policy suggestion about reconstruction of medical dispute resolution system in our country.