With the promulgation of the Regulations on the Handling of Medical Accidents and the implementation of the Supreme People's Court's judicial interpretation of the "reversal of the burden of proof" and "personal injury compensation", hospitals are facing the pressure of medical disputes. Increase, the amount of compensation increased, as the end of the social conflict of the hospital, how to establish a set of well-functioning medical dispute prevention and handling mechanism, can make the hospital and its medical staff from the complexity of the medical disputes freed from the peace of mind in medical activities; how to effectively prevent and deal with medical disputes. For several years, it has been a hot topic and a problem to be solved in hospital management. By summarizing and analyzing the relevant laws and regulations applicable to medical disputes, the members of the group summarize the laws and regulations that are easily violated in medical practice; by summarizing and analyzing the cases of medical disputes that have occurred in the past three years in hospitals affiliated to various ministries in Guangdong Province and hospitals under the provincial government, the members summarize the main reasons for triggering medical disputes, find out the weak links that are prone to medical disputes in the medical activities, and put forward the measures to prevent and handle the medical disputes from the perspective of the law. The main reasons for medical disputes are summarized and analyzed.
1 Status quo of medical disputes, causes and their legal characteristics
1.1 Status quo of medical disputes At present, the number of domestic medical disputes has increased, the amount of compensation has risen, and the nature of the situation has worsened, presenting a high level of disputes in medical institutions, the judiciary intervenes more, and the affected party brings up more characteristics. China Medical Doctors Association surveyed 114 hospitals in 2006, and found that the number of medical disputes increased at a multiplier level, with an average of 30 medical disputes per hospital in 2005, and 66 in 2006; the amount of compensation rose, with the highest compensation for a single medical dispute amounting to 920,000 yuan, and an average of 108,100 yuan per medical dispute, and the compensation for medical disputes in third-class hospitals amounting to more than 1 million yuan on average. In 2001, the Beijing Physicians Association conducted a survey of 71 large and medium-sized hospitals above the second level, which showed that: in the past three years*** there were 502 incidents of assaults on medical personnel, of which 90 were injuries and disabilities, and 1,567 incidents affecting the normal order of diagnosis and treatment in the hospitals, and the patients owed fees amounting to 150 million yuan. Guangdong Province, the relevant departments of the survey statistics show that in 2005 the province *** medical disputes occurred 1709, 1370 in 2004, 1102 in 2003.
1.2 The reasons for medical disputes [1] Analyze the causes of medical disputes, take positive preventive measures to reduce and avoid the occurrence of medical disputes, to protect the legitimate rights and interests of doctors and patients, and build a harmonious doctor-patient relationship has an important significance.
1.2.1 Medical system problems Compared with the rapid development of China's economy, social development and social security development is relatively lagging behind, the government's investment is insufficient, coupled with the introduction of new medicines, new medical technology and new equipment makes the medical cost rose significantly. Although the health authorities have made various efforts, but because the health system is in the process of transition, the people to see a doctor is expensive, difficult to see a doctor's problem is still not well resolved, the contradiction is directly converted into a doctor-patient conflict, the hospital has become a point of conflict.
1.2.2 Media factors Due to the public's relative lack of understanding of medicine, the high risk of medical work and limitations of the lack of understanding, coupled with some of the media one-sided understanding of the doctor-patient relationship conflict as a relationship between consumer behavior in the commercial circulation, emphasizing the patient's disadvantaged position, to amplify the majority of the doctor's receipt of red packets, take kickbacks phenomenon, the disputes between doctors and patients play a direct role in fueling the role of.
1.2.3 The patient's reasons Mainly in the patient's expectations of medical technology is too high, when the medical effect is not ideal, the patient tends to think that is caused by the medical institutions, often exacerbate the contradiction between the doctor and the patient, thus leading to the occurrence of doctor-patient disputes. In addition, the patient's failure to actively cooperate with the treatment is also an important aspect. In medical activities, some patients do not truthfully tell the medical history, do not fulfill the doctor's orders, take medication privately or increase or decrease the dose, go out privately to delay the treatment, etc. These situations may affect the therapeutic effect of the disease, and some patients and their families believe that it is caused by the medical staff, which leads to the occurrence of medical disputes.
1.2.4 Medical factors are mainly manifested in some medical institutions did not establish a relevant system or management laxity, medical personnel in violation of medical and health laws and regulations, resulting in medical activities, diagnosis and treatment, nursing negligence, resulting in errors; case writing is not standardized, unfavorable storage, medical records are not detailed; the medical staff of their own low level of technical skills, medical quality is not high, the sense of responsibility, the lack of sufficient knowledge, doctor-patient communication, and the lack of medical safety, the lack of sufficient knowledge, the lack of communication between doctors and patients. Lack of sufficient knowledge, improper communication between doctors and patients and other medical disputes.
1.3 Legal Characteristics (1) The subject of medical disputes [2] is limited to both doctors and patients. The medical side, including all legal medical institutions and their medical staff, at the same time, only by the examination and approval of the medical institutions and obtain the corresponding qualification certificate of medical personnel can legally practise medicine, but also to become a party in the relationship between doctors and patients subject. The affected party not only refers to the patient, but also refers to all the people who accept the medical institutions and their medical personnel to diagnose and care for the service, in fact, it also includes the patient's family members and other relations, such as the patient's other guardians, the patient's work unit, the patient's life insurance company, and so on. (2) the object of medical disputes for personal rights and property rights. The object of the medical dispute is the object of the subject of the rights and obligations of the doctor-patient relationship, including the right of person and property rights, as the subject of the medical dispute, the subject of the object of the hope is consistent, that is, hope that through the medical activities to prevent and treat the patient's disease, prolong the patient's life, improve the quality of life, and property rights and interests to play the greatest utility, but this intention often due to the particularity of the medical treatment and the high risk of medical behavior and other factors, the patient's work unit, the patient life insurance company. behavior of high risk and other factors and discount. (3) The content of doctor-patient disputes is based on the rights and obligations of doctors and patients in medical activities. From the content to determine whether the dispute is a doctor-patient dispute, the key lies in the dispute between the two sides is due to the two sides in the medical activities to fulfill their obligations, the exercise of rights in the process of the dispute.
2 medical dispute legal prevention and treatment
The occurrence of medical disputes is objective, as long as human beings have the existence of medical behavior, will inevitably be accompanied by medical disputes, and even the existence of errors, accidents, but as a hospital, medical personnel, personal, medical disputes and can be avoided.
The United States and other Western countries, the legal prevention and handling of medical disputes mechanism is relatively sound, and the relevant laws and regulations are relatively perfect, and there are specialized institutions to assist hospitals in preventing and dealing with medical disputes, members of these institutions must have medical, legal, health management of the three professional knowledge, and must be enthusiastic about this cause. At present, the domestic medical personnel relatively weak legal awareness, not familiar with the laws and regulations relating to medical disputes, although the hospital also has according to the "Medical Accident Handling Regulations" developed to prevent medical accidents and deal with medical accidents plan, but in practice it is difficult to properly resolve medical disputes.
2.1 Legal prevention of medical disputes
2.1.1 Strengthen the study of health laws and regulations Enhance the consciousness of consciously preventing disputes. Medical personnel need to strengthen their awareness of practicing medicine according to the law, and they should study the laws and regulations that are easily violated in medical practice, such as the Law of the People's Republic of China on Practicing Physicians, the Law of the People's Republic of China on Blood Donation, the Law of the People's Republic of China on Prevention and Control of Infectious Diseases and other administrative laws and regulations, such as the Regulations on the Handling of Medical Accidents, the Code for the Management of Medical Records of Healthcare Institutions, and the Basic Norms for the Writing of Medical Records. The First Affiliated Hospital of Sun Yat-sen University regularly trains medical staff and management personnel in health laws, regulations and systems, and invites experts and professors engaged in medical law to give lectures at the hospital. To a certain extent, it enhances the consciousness and ability of medical staff to consciously prevent disputes, and makes medical staff realize the importance of consciously abiding by the law and correctly using the law.
2.1.2 Strengthen management, establish, improve and perfect the rules and regulations Institutional construction is the guarantee for the safe practice of medicine in the hospital, medical work should be carried out within the framework of the system. The director of the department is the backbone of the hospital, the hospital should strengthen the management of the director of the department. It is the legal responsibility of the superior doctors to train young doctors; strengthen the referral and consultation system; conscientiously implement the reporting system at each level and act according to the legal procedures. Strictly comply with health laws and regulations and diagnosis and treatment and nursing routine training, set up medical service quality monitoring department, write and keep medical record information according to the regulations, shall not be altered, forged, hidden, destroyed medical record information and so on.
2.1.3 Properly resolve the conflict between informed consent and protective medical care The first paragraph of Article 10 of the Basic Standard for Medical Record Writing (for Trial Implementation) stipulates that patients are required to sign a consent form when they undergo surgery, special examinations, special treatments, and experimental clinical care. The second paragraph stipulates that medical personnel should implement protective medical measures for the patient, and the consent form should be signed by the patient's next of kin. Here there is a conflict, such as medical personnel to implement the first paragraph, will violate the protective medical system, the implementation of the second paragraph will violate the patient's right to exercise informed consent, if the two paragraphs are not implemented, it violates the patient's right to informed consent.
The conflict between informed consent and protective medicine has led to a number of medical disputes, such as a hospital anesthesiologist who neglected protective medicine because of his duty to inform, which eventually led to the patient's sudden death from heart attack due to stress after learning that he was about to undergo a surgical treatment that was more dangerous, which is a typical case. How to resolve conflicts in this area to reduce medical disputes? Some hospitals are: patients to personally exercise the right of informed consent, we must provide the hospital with a signed note of their own, indicating that they can correctly understand the disease and diagnosis and treatment, and asked to personally sign all the informed consent, so that patients with civil capacity to independently carry out civil activities in accordance with the law, their behavior is protected by law. If the medical staff think that the need or the patient's family members request the implementation of protective medicine, you can let the patient to provide my signature of the power of attorney, write down the situation of the principal and the authority of the agent. The author agrees with this approach, which can effectively constrain medical behavior and respect for the patient's right to informed consent.
Both the patient's right to know and the physician's duty to explain are not absolute, in specific cases, to do special treatment. Article 26 of the Medical Practitioners Law provides that the physician shall truthfully inform the patient's family of the patient's condition, but care should be taken to avoid adverse consequences for the patient; Article 11 of the Regulations on the Handling of Medical Accidents stipulates that, in medical activities, medical institutions and their medical staff shall truthfully inform the patient of the patient's condition, medical treatment, medical risk, etc., and answer their inquiries in a timely manner, but shall avoid any adverse consequences for the patient. If the patient needs to do emergency surgery, and can not contact with the patient's family, and the patient's psychological quality is relatively poor, can not be in accordance with the foregoing provisions to the patient's condition, medical risks and other matters, this protective medical measures, good faith concealment, good faith deception can be counter to the patient's right to know and the physician's obligation to explain the legitimacy of the law.
2.2 Application of Laws in Handling Medical Disputes
2.2.1 Several Ways to Resolve Medical Disputes [3] According to the provisions of Articles 40, 43 and 46 of the Regulations on the Handling of Medical Accidents, medical disputes can be resolved through negotiation, and if they can not be resolved through negotiation, the parties concerned can either apply for a resolution to the administrative department of health, or file a lawsuit to the people's court. If the parties concerned both apply to the administrative department of health for the handling of medical disputes and file a lawsuit with the people's court, the administrative department of health shall not handle the case, and if the administrative department of health has already handled the case, it shall terminate the case. Because the judicial process is the final way to resolve medical disputes, is the ultimate means of relief.
2.2.2 When dealing with medical disputes, the visitors who do not meet the qualifications of the subject of the patient are not received According to the characteristics of the subject of medical disputes, the general reception of the patient himself as a principle to receive the patient's spouse, parents, children as a supplement; at the same time, according to the "General Principles of Civil Law" on the provisions of the capacity for civil behavior, on the restriction of the capacity for civil behavior, the capacity of civil behavior, the person who does not receive.
2.2.3 Not to receive medical disputes that exceed the statute of limitations According to Article 136 of the General Principles of Civil Law, the hospital shall not receive medical disputes for more than one year from the occurrence of the medical dispute when the hospital receives and handles the medical dispute for the first time and there is no suspension or interruption of the statute of limitations, and the hospital refuses to receive them, and this kind of refusal is protected by the law.
2.2.4 Give full play to the legal role of medical records in the handling of medical disputes "Regulations on the handling of medical accidents", "Regulations on the management of medical records in medical institutions", "Basic norms for the writing of medical records (for trial implementation)", "Traditional Chinese medicine, traditional Chinese medicine and Western medicine combined with the basic norms for the writing of medical records (for trial implementation)" on the writing and management of medical records for the specific provisions of China's standardization of the medical records of the main legal basis for the information, hospitals, hospitals, hospitals, and other medical institutions, medical institutions, medical institutions, medical institutions, medical institutions, medical institutions, medical institutions, and other medical institutions. Whether there is negligence in medical activities is mainly through the medical records to prove. Therefore, the medical institutions should be strictly in accordance with the provisions of the writing of medical records, proper storage and management of medical records according to law, is strictly prohibited to alter, falsify, conceal and destroy medical records.