| Background:Because the medical disputes involve professional medical knowledge,doctors and patients have great cognitive differences on the diagnosis and treatment.The courts that deal with those medical disputes also lack professional knowledge.Therefore,in such cases,the people’s courts usually entrust the forensic appraisal institutions that have a legal qualification to identifythe medical damage,in order to find out whether the medical institution should take responsibility.This is the judicial identification of medical damage.Before the implementation of the tort liability law of the People’s Republic of China,inmedical tort litigation,the medical institutions took the burden of proof for the existence of medical malpractice and the causal relationship between the medical behavior and damage,which is the burden of proof inversion principle.In this case,medical institutions could only choose to apply for the technical appraisal for the medical negligence.Since there is a close relationship between the medical association and local medical institutions,patients usually dissented from the expert conclusion,which would hinder the smooth solution of medical disputes,and even aggravate the already complicated doctor-patient conflicts,making the court referees in a dilemma.It also forced the medical institutions to adopt more cautious and more defensive treatment,which made it difficult for the development of medical technology.In 2005,the National People’s Congress passed the "decision on the administration of judicial expertise," which provided an additional relief for patients suffering from medical malpractice technical appraisal conclusions.The medical institutions firstly applied for medical malpractice technical appraisal,and if the patients dissented from the expert conclusion then they could apply for medical damage identification.There were two identifications in one case,which increased the cost of litigation and also increased the burden of the court.In 2010,after the implementation of the tort liability law of the People’s Republic of China,the liability for medical damage was defined,and the principle of liability fixation was the principle of fault liability.Correspondingly,the burden of proof has changed into the traditional principle of "who advocates,who gives evidence",which means that the patients should take the burden to prove the existence of the fault of the medical institution.The technical identification of medical malpractice is no longer needed,and the court only accepts the application for medical damage identification by the patients.It is a smooth solution for medical disputes and can resolve conflicts between doctors and patients.But at present,a complete legal system and supporting documents has not been established for judicial identification of medical damage.The lack of unified identification of technical standards,arbitrary liability,and lack of medical expert selection and avoidance system results in a lack of sufficient theoretical support forcertain identification conclusions,which exposes the existing problems and loopholes in the forensic identification of medical damage.At the same time,the general lack of professional knowledge of judges makes it impossible to understand the judicial identification of medical damage,prone to problems such as identification replacing trial and misuse of expert conclusions,leading to the disjoint phenomenon between identification and trial.The problem ofcombination of expert conclusions and judicial practice should be solved as soon as possible.Under this background,by the statistical research and the system analysis on the medical dispute casesduring 2015-2016 in the city court system,this thesis summarized and analyzed the current situation and characteristics of medical malpractice judicial expertise,such as age and sex ratio of disputes of patients,the departments distribution and disease distribution in disputes,ration of death disputesand non-death disputes,distribution ofthe conclusion ofmedical damage identification and judicial authentication appearance in court,reappraisal situation etc.This paper identified the location and function of judicial appraisal in the court trial of medical dispute cases,to clarify the relationship between identification and judgment,making the judicial identification fit the trial and providing reference for playing the role of judicial appraisal in the trial court rightly.Objection:1.Based on the classification and statistics of the medical dispute cases of the basic level courts in a prefecture level city during 2015-2016,this paper analyzed the current situation and characteristics of medical disputes,analyzed and compared the current situation of the judicial identification of medical damage,and discussedthe characteristics of the judicial identification of medical damage.2.Through the analysis of the characteristics of medical damage judicial identification,this paper provided theoretical basis and practical support for the people’s court in the trial of medical damage liability disputes and cleared the possibility of the cause of the dispute,to achieve purpose of ultimately reducing andsolvingthe medical disputes.Material:Two years of medical disputes accepted by a prefecture level city court system from 2015 to 2016,including the caseswith judicial identification of medical damage as well as the case without medical damage judicial identification for some reason,a total of 476 cases.Method:1.This research adopted the method of retrospective study: inspected and summarized materials from 2015 to 2016 two years of medical dispute cases.The main contents of the judicial identification of medical damage were summarized and analyzed.2.According to the related theories of forensic medicine,this paper analyzed the characteristics and problems of forensic appraisal of medical damage.3.According to the requirements of the court trial practice,this paper found out the combination of identification and trial.Result:1.In 476 cases of medical disputes,there were 435 cases with medical damage identification,accounting for 91.38%.Due to the existence of a dispute over the authenticity of the medical records,or because of the lack of autopsy causing the dispute on the cause of death,there were 41 cases without medical damage identification,accounting for 8.62%.2.Of the 476 cases,there were 274 cases involving male patients,accounting for about 57.56%,and the number of female patients’ cases was 202,accounting for about 42.44%.The proportion of male and female was 1.35: 1,and that of males was slightly higher than that of females;young people under the age of 20 was 60 cases,accounting for 12.60%;age group of 21~50 was 222 cases,accounting for about 46.64%;the age group of above50 years oldwas 194 cases,accounting for 40.76%.3.In 476 cases,surgery disputes were 153 cases,accounting for 32.14%;internal medicine disputes were118 cases,accounting for 24.79%;Department of Obstetrics and Gynecology disputes were 85 cases,accounting for 17.86%;pediatric disputes were 65 cases,accounting for 13.66%;other departments(such as emergency department)dispute were 55 cases,accounting for 11.55%;cardiovascular disease disputes were the most,157 cases,accounting for 32.98%.There were 366 cases of non-death disputes,accounting for 76.89%,and the death of the dispute in 110 cases,accounting for 23.11%.4.In 435 cases with medical damagejudicial identification,judicial identification of medical damage liability ratio below 30% were 261 cases,accounting for 60%;the fault liability ratio in 31~50% were 144 cases,accounting for 33.10%;the fault liability ratio more than 50% were 30 cases,accounting for 6.90%.Among them,45 cases had judicial authentication appearance in court,and13 cases were reappraisal.Conclusion:1.The medical dispute cases should identify the facts and distinguish the responsibility through the medical damage judicial authentication,and a small number of cases weren’t identified.Untrue medical recordsand other circumstances lead to identification cannot be carried out.Therefore,when the dispute happens,medical records should be promptly sealed to confirm their authenticity,and preserve evidence tosolve the disputes.2.The patients in disputes were mostly young,and there were no significant gender differences.It is necessary to strengthen the attention tomedical risk in young adult patients.Medical disputes occurred in the department of surgery for the most,and surgical department’s medical risk was greater than non-surgical department.Cardiovascular disease was the most common disease,which reflected the sudden death of cardiovascular disease.3.The death of patients easily lead to disputes,and without autopsy judicial identificationmight result in a failure.The autopsy was a key step in identifying the cause of death and the division of responsibility,and also the basis and prerequisite to mediate and try medical disputes fairly.Autopsy should be carried out as soon as possible.4.In the objection to the identification conclusion,since restarting identification procedure is restricted by many factors,applying for expert witnesses for questioning and an expert witness make the conclusion clearerto safeguard judicial rights. |
