Comparison Between Procedures In Medicolegal Expertizing And In Medical Expertizing For Doctor-Patient Disputes

The process of medical system reform in China has witnessed increasing disputes between doctors and patients, some of which have become acute. Medical disputes are also on the rise, with a considerable number of medical disputes finally resorting to judicial proceedings. In settling medical disputes, the appraisal of medical accidents has been disputed often. The《Handling Methods of Medical Accidents》promulgated in 1987 appointed the medical accidents technical appraisal committee as the institution for technical appraisal of medical accidents and it stipulated that the medical accident technical appraisal should be a preceding procedure for a lawsuit of medical disputes. This had been very controversial. The《Regulation on the Handling of Medical Accidents》, which repealed the Handling Methods and took effect on September 1, 2002, provided that the technical appraisal of medical accidents should be a responsibility of the neutral medical association. The medical association should set up an expert base which includes qualified medical experts from the administrative region who will be named as candidates for participation into appraisal. Under coordination from the medical association, the both parties randomly select experts to form an expert appraisal team. To a certain extent, this practice has avoided the partiality resulting from the medical accident appraisal done by the medical accidents technical appraisal committee and eased the tension between doctors and patients over appraisal-related disputes. However, the implementation of the《Regulation》has been accompanied by occurrence of new problems. The Supreme People's Court has offered judicial interpretations for ambiguities in the Regulation. It required that in lawsuits involving technical appraisal of medical accident, the people's court should trust a qualified medical association with the appraisal task; in medical disputes without involving medical accident, the people's court should trust a listed judicial expertizing institution with the appraisal task. Thus, appraisal of medical accident and that of medical disputes without involving medical accident are now responsibilities of different appraising institutions. There are differences between the《Regulation》and the《Civil Law》with respect to standards, calculating methods, and sums of compensations in personal injuries related cases. In reality, these two factors have led concerned parties to bypass the medical accident appraisal and the handling procedure and turn to use damages suit and judicial expertizing for medical disputes, or to restart the judicial expertizing procedure after the two-level appraisal in lawsuit. As a result, in civil suit of damages related to medical accidents, the times of appraisals are not controlled and the medical appraisal is in effect dodged. Moreover, the low efficiency of lawsuit means increased financial burdens to concern parties of a lawsuit. The paper first compares the procedures involved in the medicolegal expertizing and in the medical expertizing for doctor-patient disputes. It tries to identify differences and similarities in aspects of appraiser selection, appraisal standard & basis, specific procedures of appraisal, and forms of appraisal conclusion etc. Next, it explores the possibility of inviting the judicial expertizing institution to undertake the medical accident appraisal in lawsuits, making judicial expertizing a procedure parallel to the medical expertizing to allow the concerned parties to choose at their own will. This will give the parties the right of choice, thus introducing a change to the current situation, in which the medical association is exclusively assigned the appraisal task, and guaranteeing the concerned parties'demand for justness of entity is met through procedural justice. Meanwhile, when comparing the two procedures, the drawbacks or shortcomings of the judicial expertizing institution performing the medical appraisal are discussed and some ideas have been brought forward on how to improve the procedure by which the judicial expertizing institution conducts the medical accident appraisal. Additionally, some fresh suggestions have been advanced regarding resolving doctor-patient disputes through judicial proceedings in order to present possible solutions to current problems in civil suits of damages related to medical accidents.