Study On The Medical Insurer's Duty To Defend In China

With the development of national public health,citizens' awareness of medical rights protection has been enhanced,and more and more medical disputes have followed.To a certain extent,medical liability insurance transfers part of the compensation matters of medical institutions.However,in the actual process of handling medical disputes,most of the insurers stay out of the way,and the real problems that bother medical service providers,such as negotiating with patients and solving disputes,still exist.The medical liability insurer's defense is based on the civil law's defense,but it has its own unique characteristics.From the existing legislation,judicature and practice of our country,we emphasize the right attribute of defense but ignore the duty attribute of defense in the current medical liability insurance system of our country.However,the medical liability insurance system which does not stipulate the insurer's defense obligation is incomplete and its value cannot be fully realized.The provision of the medical liability insurer's defense obligation is conducive to solving the imbalance of rights and obligations between the insurer and the insured,realizing the principle of efficiency in the process of handling medical disputes,and contributing to the long-term development of the medical liability insurance system.At the same time,the medical liability insurer's defense obligation is required by the principle of good faith and the principle of trust interest in the insurance law,driven by the social public policy and the need of national development.Therefore,the medical liability insurer's defense obligation has both its necessity and its feasibility.In conclusion,China should improve the relevant provisions on the defense obligation of the insurer in the medical liability insurance system.By referring to the relevant provisions of foreign countries and Taiwan,this paper puts forward Suggestions for the improvement of China's medical liability insurance system.First of all,the medical liability insurer's defense obligation should be stipulated as legal obligation,which is independent of the indemnity obligation in the insurance contract.Secondly,clearly stipulate the specific content of the medical liability insurer's defense obligation,limit its time limit and defense scope,and make a standard for the later implementation of the defense obligation;Again,stipulate the legal consequence that violates obligation of medical treatment liability underwriter to defend,the underwriter should assume the liability for compensation inside defend cost and accept insurance limits not only,still should assume the loss of right and reasonable spirit damage compensation;Finally,the conflict of interest resolution mechanism of medical liability insurer's defense obligation is established,which mainly solves the conflict of interest arising from the settlement and lawyer's confidentiality obligation.