Law And Economic Analysis Of Legal Issues In Medical Disputes

With the development of society, as a common form of disputes, medical disputes attract more and more attention, the problem related to medical disputes come into public view.A variety of medical disputes emerges in all part of the country, Doctor-patient relationship become more and more intense, leading to widely attention. For issues related to medical disputes, had been suited "The Approach on the Handling of Medical Accidents" for 15 years, which was introduced in 1987. With the advancement of the process of constitutionality, "The provisions in "Approach on the Handling of Medical Accidents" become more and more derailed from reality, so the State Council promulgated the "The Regulation on the Handling of Medical Accidents" on April 14,2002. "The Approach on the Handling of Medical Accidents" automatically lapse.The implementation of the new law has a good social effect. On December 26,2009, the NPC Standing Committee passed the "Tort Liability Law of the People's Republic of China", for the treatment of medical disputes, and formulate more comprehensive provisions. But "gold can not be pure", the achievements of the reform, compared with the original intention of the legislators still exists problem. The first part of this paper will simply introduce some concepts of medical dispute and the cause of it, and will roughly discuss current legislation about medical disputes and the problems existed in legislation.To resolve medical disputes, we must make clear of the responsibility Principle and reparation mode of the medical violations which caused medical disputes. According to the principle of "higher level law better than a lower level law", "Tort Liability Law of the People's Republic of China" is higher than "The Regulation on the Handling of Medical Accidents", so it should apply "Tort Liability Act". However provisions in "Tort Liability Act" in the provisions are too general, so the treatment of medical disputes always suited the "Tort Liability Act." as principle, while make reference to "regulations" in the relevant regulations. According to "The Regulation on the Handling of Medical Accidents" and the "Tort Liability Law," latest issued in 2009, China's current medical tort apply to the principle of "fault liability". Why apply the principle of fault liability instead of the principle of strict liability? The explanation given by the traditional legal theory are often rhetorical discourse, though it is high-sounding, the legitimacy of the current design of the system is still not convincing, most of their answers were subjectivity, ambiguity, and poor maneuverability, even appear inconsistency when to explain some of the problems.Once the medical institutions and their staff involve in medical violations, the next question is the damage compensation. At present, the damage compensation caused by medical violations still have many problems, first of all, the compensation standards are not unified, there has been a "double standard" situation in judicial practice. Of course, as the "Tort Liability Act" applied, this phenomenon is expected to be solved. Second, with the relationship between the medical institutions and patients becomes acute, people's voice to make the hospital adopted a "heavy punishment" doctrine growing louder, the simple compassion for patients overwhelmed rational thought, making the medical institutions bear the sorrow, and even slack work, it is tiresome to cope with this problem. The improvement of medical standard and the establishment of a harmonious doctor-patient relationship face huge obstacle. Third, compensation for moral damage lack of established standards, the free space for justice to make decision is too large, resulting in "a Life with different price," " same injury in different price," and so on. The second part of this paper will systemic show the embarrassment the traditional law theory faced when it try to explain or to treat above-mentioned problems.Contrary to the traditional legal theory, theory of Law and Economic has inherent advantages in explanatory ability. The third part will be launched in the framework of the economic analysis to law, making different interpretations for above-mentioned issues. Reflecting on the framework of economic analysis to law, with the "Hand Formula" and other law and economics analysis tools, to repeat the issues, which the traditional legal theory can not clearly explain, for example "fault liability" of the responsibility principle, "burden of proof rules of evidence and "intangible damage " compensation calculation.Finally, the fourth part of the article will continue to mount economics theory as the guidance, adhere to the "maximize efficiency" principle, puts forward some superficial idea from the aspect of legislative technique and system design put in order to resolve medical disputes better, including "distinction and stereotype" imputation principle; "compensatory primarily, punitive compensation" method; consummate the reasonable "risk and liability" share system. I hope these analysis and exploration, could make medical disputes more promptly and effectively resolved, and devote my meager effort to establish the harmonious doctor-patient relationship in China as soon as possible.