The Discuss Of The Shortage And Perfection Of Judicial Identification On Medical Damage In Our Country

The institution of judicial identification on medical damage is one of important identifying institutions in China, playing a positive role in solving medical disputes, and the judicial surveyor, as a practical operator of judicial identification on medical damage, is the core part of this institution. But owing to various subjective or objective factors, there still exist a lot of problems in the field of judicial identification on medical damage, thus making it not acting so effectively in solving disputes and eliminating arguments, especially more seriously in modern society full of fierce conflicts between doctors and patients. Therefore, the key point of this paper naturally goes to the existing problems in judicial identification on medical damage and the improvement of it.The paper includes four parts, except the introduction and conclusion, and the content of each part shows as follows:The first part is the general description of judicial identification on medical damage. First, from the perspective of relative laws, the paper specifies the basic concept of judicial identification on medical damage, and sets forth its own opinion, based on the mainstream opinion in the law field. Then, based on the identification of some relative concepts, it further probes to and clarifies the features of judicial identification on medical damage. And this part is exactly for laying a foundation for the following parts.The second part is a comparison between judicial identification on medical damage and technical identification on medical damage. This part pays a great attention to analyzing the legislative reason and developing process of the identification mode of “Duality”, and makes a comparison between these two institutions, thus analyzing the commons and differences, so as to improve the institution by combining the respective merits. Finally, the paper concludes the mainstream opinions on identification mode of “Duality” in law field, and comes up with its own opinion on the improvement of it.The third part is about the exiting problems in judicial identification on medical damage, naturally being the core part of this paper, subject to the thinking mode of “the longer, the deeper”. In overall, the paper tries to clarify the problems from the substantial aspect and procedural aspect. First, from the aspect of identifying members and identifying body, the paper analyzes the problems existing in identifying subject. Then, based on judicial practice, it figures out some problems in the process of identifying such as the improper review of medical records and replacement of judge by hearing. Thirdly, from the perspective of verified written opinion, the paper emphasizes the regulation of verified written opinion decides the quality of it, because it is the conclusion of the whole identifying process, but there often exist the vague stipulation of liability and improper extract of medical records in verified written opinion, thus influencing the quality of it, and owing to a lack of assessment on the verified written opinion, there often appear a lot of repeated identification. Fourthly, the standard of assessment is over unified, without a consider of distinguishing the medical body in different districts and levels, thus resulting in the unfairness in some degree. Finally, the paper probes to the fact that the clinical consultation expert often takes part in the identifying process without a signature in verified written opinion, and the consequence of indeterminate liability caused by this fact, and finally analyzes the reasons.The forth part is some advice on improvement of the institution of judicial identification on medical damage. This part is exactly corresponding to the third part, concentrating on the defect of the institution of judicial identification on medical damage. Firstly, the paper centers on the improvement of identifying subject, mainly by adopting such a sort of identifying institution with a participation of non-profit layer and clinical consultation expert, and going on a fixed examination on them and eliminating the participation of medical body. Then, it goes to the improvement on the extracting and review of medical records, that is, the extraction of medical records shall be in a direct way, and in the process of reviewing the medical records, a cross-examination note on medical records shall be asked from the court, which is a vital way to ensure the objectivity of identification. In the meanwhile, it is necessary to establish a exchange mechanism between its own field and forensic assessment mechanism, thus making the other identifiers and judges play a positive role in the process of identification. In the process of implementing the identification, a sort of assessment standard “differentiation” shall be adopted, in other words, what kind of liability the medical body should bear depends on not only its own fault but also its location and level. Finally, in the process of identification with clinical consultation experts, it is urgent to take away the shelter protecting them from taking responsibility for their faults, and rule of avoidance shall be applied to the consultation experts. As for the clinical consultation expert’s irresponsible identifying should be strictly controlled by the judicial identifier, so as to cross out the wrong consultation opinion.