|Year : 2019 | Volume
| Issue : 4 | Page : 204-207
Confrontation and integration: The present and future of forensic examinations on medical damage in China
Xu Wang, He Yuan
Key Laboratory of Evidence Law and Forensic Science, Ministry of Education, China University of Political Science and Law; Collaborative Innovation Center of Judicial Civilization; Research Centre of Forensic Science Standards, China University of Political Science and Law, Beijing, China
|Date of Submission||24-Jul-2019|
|Date of Decision||18-Sep-2019|
|Date of Acceptance||19-Sep-2019|
|Date of Web Publication||11-Dec-2019|
Key Laboratory of Evidence Law and Forensic Science, Ministry of Education, China University of Political Science and Law, Beijing 100088
Source of Support: None, Conflict of Interest: None
In China, two administrative regulations and judicial interpretations related to forensic examinations of medical damage were issued from March 2017 to June 2018. In chronological order, they were interpretation of the supreme people's court on several questions concerning the application of law in the trial of disputes over liability for medical damage and regulations on the prevention and handling of medical disputes. Those two laws, especially the regulation, have had a fundamental impact on the pattern of forensic examinations on medical damage. This paper systematically reviews the current status and existing problems with forensic examinations on medical damage following implementation of the law of tort liability; it discusses new concepts of procedures, institutional arrangements, and the selection of examiners for forensic examinations on medical damage. We believe that through the regulation, the dualistic confrontation status of forensic examinations on medical damage will gradually change toward integration. We consider that forensic examinations of medical damage will face three challenges in the future: (1) enhancing the establishment of standards; (2) undertaking theoretical research into forensic examinations on medical damage; and (3) promoting the development of interdisciplinary identification specialists majoring in both medicine and law. Only in this way will it be possible to rectify the current dilemma with forensic examinations on medical damage in China.
Keywords: Forensic examinations on medical damage, medical malpractice dispute, technical standard
|How to cite this article:|
Wang X, Yuan H. Confrontation and integration: The present and future of forensic examinations on medical damage in China. J Forensic Sci Med 2019;5:204-7
|How to cite this URL:|
Wang X, Yuan H. Confrontation and integration: The present and future of forensic examinations on medical damage in China. J Forensic Sci Med [serial online] 2019 [cited 2020 Nov 24];5:204-7. Available from: https://www.jfsmonline.com/text.asp?2019/5/4/204/272721
| Introduction|| |
Medical dispute is both a difficulty in current judicial practice and a risk in comprehensively maintaining of public security. Forensic examinations on medical damage are the core technical means in the dispute settlement mechanism. Such examinations can even play a vital evidentiary role in the handling of medical disputes. When determining blame and consequent causality and the degree of causation in a medical malpractice case, judges usually make their professional decision after referring to forensic examination reports on medical damage.
Two medical disputes related to administrative regulations and judicial interpretations were released in China between March 2017 and June 2018. They were as follows. (1) interpretations of the supreme people's court on several questions concerning the application of law in the trial of disputes over liability for medical damage (hereafter referred to as the “Interpretation”) were adopted by the Judicial Committee of the Supreme People's Court at its 1713th meeting on March 27, 2017 and effective from December 14, 2017 and (2) regulations on the prevention and handling of medical disputes (hereafter referred to as the “Regulation”) which was adopted at the executive meeting of the state council presided over by the state council premier Keqiang Li on June 20, 2018 and effective from October 1, 2018. These two laws have brought a fundamental impact on the pattern of forensic examinations on medical damage.
| Development of Forensic Examinations On Medical Damage|| |
Historical development of laws for settling medical disputes
Reviewing the promulgation of laws regarding medical dispute settlement, it is evident that change occurred in four waves: (1) procedures for the handling of medical malpractices, which was issued by the State Council on June 29, 1987; (2) medical treatment dispute solution article, which was issued by the state council on September 1, 2002 (replacing the aforementioned Procedures); (3) law of the People's Republic of China on Tort Liability (Law of Tort Liability), which was issued by the National People's Congress under consideration and adoption by the 12th Session of the Standing Committee of the 11th National People's Congress on December 26, 2009 and implemented on July 1, 2010; and (4) regulations on the prevention and handling of medical disputes, which was issued by the State Council on July 31, 2018. Those laws and regulations have produced changes in forensic examinations on medical damage in China.
As an area of specialized technical judgment, forensic examinations on medical damage have become a key form of evidence in resolving medical disputes in trial-centered court nowadays. Hitherto, there have been two types of forensic examinations for medical disputes in China. One is forensic examinations on medical accidents made by medical associations and the other is forensic examinations on medical malpractice made by forensic institutions. The former provides the basis for administrative penalties on medical accidents, the latter provides technical support for civil compensation in medical disputes. This has led to a dualization in medical disputes. It is specifically manifest in cause of the case, application of the law, and forensic examinations. Competition and confrontation exist between the two types of forensic examination. The former represents protection of the rights and interests of physicians and the latter represents the protection of patient groups.
Forensic examinations on medical malpractice have become the mainstream in forensic examinations on medical damage
Reviewing the development of medical dispute settlement in China, from the procedures for the handling of medical malpractices (issued on June 29, 1987) to the medical treatment dispute solution article (issued in 2002), there is a very clear tendency from accident theory toward Tort theory. We can draw this conclusion from the fact that the causality in “medical malpractice” has changed from “direct causality theory” to not emphasizing direct causality, but “participation degree” (partial causality). In recent years, the concept of “medical accident” with strong nature of health administration has withdrawn from the stage of civil trial, which highlights the progress of civil law and trial in China. “accident theory” dispute settlement has changed to “Tort theory” dispute settlement.
This situation is evident in a comparison of data about forensic examinations on medical damage. Take the data in Beijing for an example, according to incomplete statistics, in 2010 (before the Law of Tort liability was implemented), about 500 forensic examination reports on medical accident were issued by Beijing Medical Association at all levels and 1139 forensic examination reports on medical malpractice were issued by the forensic industry in Beijing. Over the last 3 years, approximately twenty forensic examination reports on medical accident were issued by the Medical Associations at all levels in Beijing, where over 2000 forensic examination reports on medical malpractice were issued by Beijing Forensic Industry. The difference was obvious, and forensic examinations on medical malpractice have taken the mainstream.
| New Problems and Situations in Judicial Practice|| |
Changes in medical damage compensation and forensic examinations have produced new problems and situations; they include issues related to trials and problems with forensic examinations on medical damage.
One author has analyzed the formation of China's medical liability in medical malpractice liability cases on China Judgements Online. The details appear in [Table 1] and [Table 2].
|Table 1: Judgments on medical malpractice liability cases in 2014.2016 (n=14,302)|
Click here to view
|Table 2: Judgment on medical malpractice liability dispute case in Grassroots Court in Beijing downtown (n=48)|
Click here to view
According to data, in China's medical dispute lawsuits, the proportion of ordering medical institutions to assume responsibility was abnormally high: up to 80%. In the United States in 2005, only 23% (n = 2449) cases were won in medical malpractice trial. There was a trend of generalization in the cognizance of causality in the medical dispute trial in China. It mainly manifested in the cognizance of partial responsibility of medical institutions in most trials. In 70%–80% of the cases, medical institutions assumed either “no responsibility” or “full responsibility.” Forensic examinations on medical malpractice lack the support of technical standards. However, court trials depend excessively on forensic examination reports, sometimes, almost completely. The proportion of this high dependence may be more than 70%. This phenomenon has been referred to as “forensic examination report dependence syndrome.”
Problems with forensic examinations on medical malpractice
In recent years in China, there have been a large number of dispute cases involving medical malpractice liability that have been accepted by courts. According to one source, 19,944 medical dispute cases in China were accepted by courts in 2014, 23,221 in 2015, and 21,480 in 2016. The following factors have been affecting the credibility of forensic examinations on medical malpractice: (1) excessively long examination period, (2) procedures not being uniform, (3) lack of evaluation criteria and varying scale of causal relationship, (4) poor professional skills of certain forensic examiners, and (5) insufficient peer review. Those five factors have led to criticism upon forensic examinations on medical malpractice. Especially with factors four and five, there has been particularly strong opposition voice from physicians.
In dispute cases related to medical malpractice, many factors lead to difficulties in trials, such as the length of trials, identifying the burden of proof, constitution of responsibility, and commitment of responsibility. The controversies related to these issues could even trigger social contradictions.
| New Highlights Brought By “regulations” For Forensic Examinations On Medical Damage|| |
In light of the above circumstances, there were many expectations of the “Regulation,” which was implemented on October 1, 2018. Here, we briefly introduce the innovations produced by the “Regulation” regarding forensic examinations on medical damage.
Establishing and standardizing expert database
The “Regulation” provides that the expert database of forensic examinations on medical damage shall be “jointly established by the health and judicial administrative departments of the people's governments at or above the municipal level with districts.” To a great extent, that has solved the problem of insufficient medical professional consultation in judicial trials.
Establish principle of professional peer review
As scientific evidence, forensic examinations on medical damage need to be both scientific and impartial. The design of the “Regulation” can guarantee its impartial nature where its scientificality often requires professionalism to guarantee, i.e., by professional-peer reviews.
Clarified the “items to be trusted”
Both “Interpretation” and “Regulation” clarify that items to be trusted are as follows: “reports of forensic examination on medical damage should describe and elaborate on the following: (1) Is there any medical damage and what is the degree of damage? (2) Is there any medical malpractice? (3) Is there a causal relationship between the medical damage and medical malpractice? and (4) What is the liability degree of the medical malpractice in the medical damage?” These items meet the needs of court trials.
Unifying standard of compensation
Article 44 of the Regulation stipulates, “If medical disputes arise and compensation is needed, the amount of compensation shall be determined in accordance with the provisions of the law.” This is the first time since 1987 that China has explicitly stipulated in the form of law that medical damage compensation and general personal injury compensation should apply the same standard of compensation, which is the Tort Liability Law.
| Mission Of Forensic Examinations On Medical Damage Under The “regulation”|| |
To strengthen construction of standards
The emersion (one might even say: the explosion) of the problem of the use of science as a method of proof of the facts in issue in any judicial proceeding is one of the most important phenomena of the last decades. In the era of standardization, standards relating to forensic examinations on medical damage are a question of weights and measures. It is the key to maintaining stability and reliability with respect to of forensic examinations on medical damage. One of the reasons why forensic examinations on medical damage have been criticized for years is that it has been lacking judging standard.
To launch the theoretical research on forensic examinations on medical damage
Conducting theoretical research involves two major technical difficulties: (1) standardization of fault determination and (2) causality and division of causal force.
Regarding theoretical problems related to forensic examinations on medical damage standards, there are three mainstream interdisciplinary theories: (1) The proper doctor standard (i.e., Bolam standard). It reflects the judiciary's respect for the opinions of the medical profession. It is a relatively loose standard medical practice. It emphasized opinions of “The result is not guaranteed” and “avoiding hindsight;” (2) The prudent patient standard. It emphasizes taking the needs of the patient as a central concern. All risks that might affect the patient's decision making should be explained; and (3) Medical standards (Professor Matsukura's standard in Japan) emphasize that during medical practice, the knowledge, degree of attention, skills, and attitudes of all medical staff should meet minimal medical professional standards. Neither medical nor judicial circles in China meet mainstream standards for forensic examinations on medical damage, and this area needs to be clarified.
In a word, under the background of issuing new laws, medical and judicial circles in China are together adapting to the system for settling medical disputes. For forensic examinations on medical damage, there is also a trend from confrontation to integration. It continues in-depth theoretical research with an interdisciplinary and cross-field perspective, hoping to resolve the legal practical problems in settling medical disputes.
Financial support and sponsorship
This study was funded by the Humanities and Social Sciences Planning Project of Ministry of Education (No. 18YJA820018; No. 10YJA820105) and Open Research Project of Shanghai Key Laboratory of on-site Material Evidence (2017XCWZK19).
Conflicts of interest
There are no conflicts of interest.
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[Table 1], [Table 2]