Theory Of Conflict And Settlement Of Medical Damage Appraisal System In China

In recent years, the phenomenons such as "hospital scalper", "medical trouble", "medical violence" emerged endlessly have been reported in public, which lead to the doctor-patient relationship become increasingly tense and serious. Medical damage appraisal opinion is one of evidences of medical damage compensation cases, which is an extremely important link to investigate the responsibility of medical damage compensation. Medical damage appraisal opinion relates to the justice of judicial decisions, whether it is right or not. According to existing legislation in our country, the medical damage appraisal system can be divided into two forms: one is technical appraisal for the medical negligence organized by Institute of Medicine, another is forensic judicial identification organized by forensic. Because of the different legal basis and no unified legislation to define the scope of medical damage appraisal subject, therefore, in the judicial practice, it has formed the situation of dual medical damage identification, which leads to more conflicts in the process of litigation, such as: long-time identification, repeated identification and so on, above all conflicts brings about increasing judicial costs, damaging the interests of both doctors and patients, even inflaming tensions between doctors and patients.In order to resolve medical disputes and alleviate the increasingly tense relationship of doctors and patients as soon as possible, based on scientific medical damage appraisal opinions and fair procedure, this thesis mainly analyzes the present situation of medical damage appraisal system, and analyzes their influences on the judicial trial.Actually, it’s not hard to find that forensic judicial identification and technical appraisal for the medical negligence often occur together in the same medical dispute, however, because of differences of legal basis, appraisal subject and procedure and so on between both, they usually make two different or even opposite opinions, and due to the appraisal opinion is an important basis for determining the facts of cases, so the judge will face difficulties in choosing the appraisal form at this time. Meanwhile, due to no legislative and judicial interpretation were specifically addressed on dealing with issues of medical damage appraisal, so the two appraisal forms still coexists, which not only affects the judicial effects of medical damage disputes, but also affects the social effects of coordination between doctors and patients. In response to this situation, the author thinks that the most important thing is to deal with the relationship between the nature of medical damage identification and the basic principles of,then propose a simple and feasible solution of the conflict. This thesis is divided into four chapters, as follows:The first chapter is to analyze the present situation of our medical damage appraisal system. Firstly, understanding the concept and characteristics of medical damage appraisal, and in order to defining the scope of the definition of medical damage appraisal referred in this thesis, analyzing the origin of names of some terms, such as: medical malpractice, medical damage and medical damage appraisal through the research on different implementation period of laws and regulations that deals with medical disputes in China. Then make the further research on the setting and defects of the two forms, and through analysis of the situation of the dual medical damage identification, finally finding out the subjective and objective reasons of the situation.The second chapter is to put forward the necessity of solving problems from the conflict. At first, this chapter analyzes medical damage appraisal dualistic situation’s influence on justice in our country, mainly including the problem of choosing the appraisal form and the problem of choosing the appraisal opinion, and puts forward to the necessity of solving problems from the situation, and building a unified medical damage appraisal system. In judicial trial, the judge is very difficult to choose one of appraisal forms and adopt one of appraisal opinions, these issues have serious influences to the judge on pointing out the facts of the case, relating to the interest of doctors and patients. Therefore, it is necessary to reform the medical damage appraisal system, and put forward concrete practices to be perfect and unified the system.The third chapter is to analyze existing problems of the system, and put forward to solutions of medical damage appraisal system in our country. The author mainly focus on analyzing the current reform of the system in our country, mainly including reforms of the appraisal subject and process. Through comparative analysis of different views from different fields about reforming the medical damage appraisal system, making an objective evaluation and promoting my ideas, namely under the premise of persisting the identification of duality, firstly giving priority to start medical technical appraisement, secondly based on the defects of its settings, it put forward to perfect the mechanism, including admissibility mechanism, supervision mechanism and for medical accidents Suggestions to consummate the mechanism of defects, mainly including mechanism, supervision mechanism and responsibility mechanism, above mechanisms is designed to make up for the defects of inadequate protection of the neutrality of medical technical appraisal.The last chapter is the conclusion, the main content is summarizing main ideas of writing this thesis, putting forward my own point of view, and finally pointing out deficiencies of this thesis.