Difference between medical malpractice appraisal and medical fault appraisal The key to dealing with civil cases of medical disputes lies in the medical appraisal, and the appraisal conclusion determines the responsibility of the whole case and the calculation of compensation. According to China's current laws and regulations and judicial practice, medical appraisal, including medical malpractice appraisal and medical fault judicial appraisal. Although both appraisal belongs to the evidence in civil litigation, and even directly adopted by the people's court as the basis for decision, but there are obvious differences in the appraisal process and entity review, these differences affect the appraisal of medical facts and legal facts, but also affect the results of medical dispute cases. Medical malpractice technical appraisal, usually known as medical malpractice appraisal, refers to the medical association organized by the relevant clinical medical experts and forensic experts composed of expert groups, the use of medicine, forensic science knowledge and technology, related to medical malpractice administrative handling of the relevant specialized issues for testing, identification and judgment and to provide the identification of the conclusion of the activities. The technical appraisal of medical malpractice has the nature of administrative appraisal, and its conclusions, in addition to dealing with compensation for medical malpractice, can also be used as the basis for administrative penalties imposed by the health administrative department on the medical institution and its medical personnel. Medical fault judicial appraisal, usually called medical fault appraisal, generally refers to the litigation activities in the appraisal of scientific and technological or specialized knowledge of the litigation involved in the identification and judgment of specialized issues and to provide the activities of the appraisal opinion. This type of appraisal is mainly for medical behavior is at fault and fault medical behavior and the patient's medical damage whether there is a causal relationship between such issues. This concept is actually not rigorous, because the content of this appraisal is not limited to the existence of fault medical behavior. In fact, it also includes whether there is a causal relationship between the medical fault and the consequences of the patient's damage, as well as the severity of the patient's damage, which is what we usually call the disability level. First, the legal basis of different medical malpractice technical appraisal of the legal basis for the implementation of the "Regulations on the Handling of Medical Accidents" in 2002 and seven supporting health laws and regulations, including the "Interim Measures for the Technical Appraisal of Medical Accidents", "Medical Malpractice Classification Standards (Trial)", "Medical Malpractice Technical Appraisal of the Expert Pool of Discipline Specialty Groups Directory", "Medical Malpractice Disputes in the Autopsy Institutions and the qualification of professional and technical personnel," "Medical Records Management", "medical institutions and medical records management". The "Provisions on the Administration of Medical Records of Medical Institutions", "Basic Norms for the Writing of Medical Records (for Trial Implementation)" and "Basic Norms for the Writing of Medical Records of Traditional Chinese Medicine and Traditional Chinese and Western Medicine Combined (for Trial Implementation)", with reference to the currently effective medical and healthcare management laws, administrative regulations, departmental rules, and diagnosis, treatment and care norms and routines. The main legal basis for judicial appraisal of medical fault is the Civil Procedure Law, the Decision of the Standing Committee of the National People's Congress on the Administration of Judicial Appraisal, the General Principles of Judicial Appraisal Procedures (for Trial Implementation) of the Ministry of Justice, the Measures for the Administration of the Registration of Judicial Appraisal Institutions, the Measures for the Administration of Judicial Appraisers, the Provisions on the Categorization of Judicial Appraisal Practices and the Rosters of the State Judicial Appraisers and Judicial Appraisal Institutions of the Provinces, Municipalities and Regions. Roster of National Judicial Appraisers and Judicial Appraisal Organizations", etc. Appraisal procedures are different 1, appraisal institutions and appraisers Medical malpractice technical appraisal is organized by the medical association at all levels. Local medical associations at the municipal level and at the county (city) level under the direct jurisdiction of provinces, autonomous regions and municipalities directly under the Central Government are responsible for organizing expert appraisal teams to conduct the first technical appraisal of medical accidents. Provinces, autonomous regions and municipalities directly under the Central Government are responsible for organizing the re-identification of medical malpractice disputes. The medical association establishes a pool of experts, which should be set up according to the directory of disciplinary specialty groups. The judicial appraisal of medical errors is completed by qualified judicial appraisal organizations. After the judicial appraisal organization accepts the entrustment, the judicial appraisal organization designates the judicial appraiser, or the judicial appraiser applied by the client and agreed by the judicial appraisal organization to complete the entrusted matters. The same forensic matters by more than two forensic experts, the first forensic expert on the identification of the conclusion of the main responsibility, other forensic experts bear secondary responsibility. 2, start the identification process medical malpractice technical appraisal organization accepts: (1) the consensus of the two parties, *** with the written commission; (2) the local people's government at or above the county level when the written transfer of the health administrative department commission; (3) the judicial organs (the court) entrusted. Medical fault judicial appraisal organization accepts: (1) the judicial organs (court) parties to the commission; (2) the litigation has the burden of proof of the parties through the commission of the law firm. 3, the hearing procedure medical malpractice technical appraisal by the expert appraisal team presided over, and in accordance with the following procedures: (1) both parties in the prescribed time to state their opinions and reasons. The order of presentation first patient, after the medical institution; (2) expert appraisal team members can ask questions as needed, the parties should answer truthfully. If necessary, the patient can be on-site medical examination; (3) both parties to withdraw; (4) expert appraisal group on both sides of the written materials provided by the parties, statements and defenses, etc., for discussion; (5) by the collegiality, according to the unanimous opinion of more than half of the expert appraisal group to form the identification conclusion. Expert appraisal group members signed the appraisal conclusion. Expert appraisal group members of the identification of different opinions, should be noted. Judicial appraisal of medical errors on the hearing process is not mandatory, in practice, forensic medicine is usually modeled on medical malpractice technical appraisal, first by the parties in the prescribed time to state their opinions and reasons, and then by the internal medical experts hired to ask questions about the doctor and the patient, if necessary, will also examine the patient. 4, appraisal level medical malpractice technical appraisal is divided into the first appraisal and re-appraisal. Any party to the first medical malpractice technical appraisal conclusion is not convinced, can be received from the first medical malpractice technical appraisal within 15 days from the date of application to the original acceptance of medical malpractice disputes processing application of the administrative department of health to apply for re-appraisal, or by the two parties * * * with the commissioned provinces, autonomous regions, municipalities directly under the Central Medical Association to organize a re-appraisal when necessary, difficult, complex and have a significant impact on the national When necessary, for difficult, complex and nationally significant impact of medical malpractice disputes, the provincial health administrative department can ask the Chinese Medical Association to organize the technical appraisal of medical malpractice. The judicial appraisal of medical fault is divided into initial appraisal, supplementary appraisal, re-appraisal and review appraisal. Any party to the initial appraisal conclusion is not convinced, you can apply for supplementary appraisal, re-appraisal or review appraisal, but to meet certain conditions, such as the request for supplementary appraisal must be: (1) the discovery of new relevant identification materials; (2) the original appraisal project has been omitted. And to reappraisal, the following conditions must be met: (1) forensic institutions, forensic identification beyond the scope of forensic identification business or practice categories for identification; (2) false or inaccurate materials sent for identification; (3) the original appraisal of the use of standards, methods, or instrumentation is not appropriate, resulting in the original identification of unscientific, inaccurate; (4) the original identification of the conclusion of the contradiction with the other evidence; (5) the original The forensic expert should be recused but did not recuse; (6) the original forensic expert due to fault issued by the wrong conclusion. 5, appraisal time limit responsible for the organization of medical malpractice technical appraisal of the medical association in the medical malpractice technical appraisal 7 days before the appraisal of the time, place, requirements, etc., notify the parties in writing. From the date of receipt of both parties to submit the material on medical malpractice technical appraisal, written statements and defense within 45 days from the date of the organization of the appraisal and the issuance of medical malpractice technical appraisal. Judicial appraisal of medical fault shall be issued within 15 days from the date of acceptance. If there is a need to extend the period, it can be extended to 30 days after explaining the reasons to the client. If it is necessary to extend the appraisal time limit for complex and difficult cases, with the approval of the person in charge of the judicial appraisal organization and the consent of the client, the time limit may be extended appropriately. The extension period shall not exceed 60 days. Appraisal process needs to be supplemented identification materials required time, not counted in the appraisal time limit. Judicial practice, the judicial appraisal of medical errors from the application to the judicial appraisal body to issue identification opinions, often need a few months or even more than half a year's time. Third, the identification of different conclusions 1, the content of different medical malpractice technical appraisal should include the following main content: (1) the basic situation of the parties and requirements; (2) the parties to the materials submitted and the medical association's investigation materials; (3) the identification process of the description; (4) whether the medical behavior in violation of the laws of medical and health care management, administrative regulations, departmental regulations and diagnosis and treatment norms and routines; (5) the relationship between the medical Whether there is a causal relationship between medical negligence and the consequences of personal injury; (6) medical negligence in the consequences of medical malpractice in the degree of responsibility; (7) medical malpractice level; (8) medical malpractice on the patient's medical care medical advice. Among them, (6) the degree of responsibility is divided into four levels: full responsibility, major responsibility, minor responsibility and minor responsibility. Medical error judicial appraisal of the content of the conclusion, including the date of acceptance, the commissioner, commissioned by the reason, appraisal requirements, sent to identify the material situation, test or inspection process, identification (test) conclusions or review (consulting) opinion, appraisal (test, review, consulting), as well as other content should be included. Which focuses on the causal relationship between the medical fault and the results of the damage, the proportion of responsibility or loss of participation. 2, the form of different medical malpractice technical appraisal should be based on the findings made, the manuscript is issued by the expert appraisal team leader. Medical malpractice technical appraisal of medical malpractice stamped with the medical association of medical malpractice technical appraisal special seal, expert appraisal group members do not sign. Medical fault judicial appraisal conclusion must be appraisal (test, review, consulting) the signature of the person, and the need to indicate the professional and technical title, the appraisal of the appraisal of the conclusion of the review of the forensic appraisal shall be signed on the judicial appraisal instruments. Forensic instruments issued by the issuer after the signature of the forensic identification agency stamped forensic identification special seal. Fourth, the court questioning different medical malpractice technical conclusions as evidence in court when questioning, the parties can freely express their views in favor or against, but can not apply for the people's court to summon expert appraisal of the court to accept the questioning. While questioning the medical fault judicial appraisal conclusion, the party who is not convinced of the conclusion can apply to the people's court to summon the judicial expert to the court for questioning, the judicial expert shall be in accordance with the requirements of the judicial organs or arbitration institutions on time. When the judicial expert appears in court, he or she shall present the Certificate of Practice of Judicial Appraiser, and shall answer the questions related to judicial appraisal objectively, impartially and factually according to the law. In summary, in view of the important role of medical appraisal in dealing with civil cases of medical disputes, doctors and patients, no matter what way to choose to solve the dispute, should understand the main difference between the two kinds of appraisal, according to the actual case to choose the medical malpractice appraisal or medical fault judicial appraisal, in order to achieve the benefit of the effect of avoiding harm. The above is the editor for the answer to the question of the organization, if there are still questions, welcome to the consultation.
Legal objective:Medical malpractice appraisal is the determination of whether the medical behavior constitutes an accident. Medical fault appraisal refers to the people's court in the acceptance of medical damages civil litigation cases, ex officio or at the request of any party of the doctor and the patient, entrusted with specialized knowledge of the patient's complaint of medical damage results with the doctor's fault there is a causal relationship between the specialized issues such as analysis, judgment, and to provide appraisal of the conclusion of the activities. The difference between the two are as follows: first, medical malpractice appraisal is a kind of administrative appraisal, medical fault belongs to the judicial appraisal. Second, medical malpractice appraisal is for medical and health administrative departments to deal with medical institutions and their medical personnel in medical activities whether there is a violation of medical and health management laws, norms and so on the basis provided. Third, the commissioning method is different, medical malpractice technical appraisal can be decided by the medical and health departments, can also be commissioned by both parties **** with. Fourth, the scope of the subject of identification is different. Medical malpractice appraisal can only be organized by the medical association of medical malpractice appraisal expert group. Medical fault appraisal by the judicial organs can be referred to the statutory appraisal organization. Fifth, the appraisal of the responsibility of the subject is different. Medical malpractice technical appraisal issued by the medical association, expert group members need not sign and stamp on the appraisal; medical fault appraisal appraisal appraisal need to sign or stamp on the appraisal, the implementation of personal responsibility. Article 3 of the Interim Measures for the Technical Identification of Medical Accidents, the technical identification of medical accidents is divided into the first identification and re-identification. Municipalities and provinces, autonomous regions and municipalities directly under the jurisdiction of the county (city) level local medical association is responsible for the organization of expert appraisal group for the first time in medical malpractice technical appraisal work. Provinces, autonomous regions, municipalities directly under the Central Government local medical associations are responsible for organizing medical malpractice disputes re-identification work. The medical association responsible for organizing the technical appraisal of medical accidents (hereinafter referred to as the medical association) may set up an office for the technical appraisal of medical accidents, which shall be specifically responsible for the organization and daily work relating to the technical appraisal of medical accidents. Article 20 of the Regulations on the Handling of Medical Accidents: Upon receipt of a report from a medical institution on an act of gross medical negligence or an application from a party involved in a medical accident dispute requesting the handling of the dispute, the administrative department of health shall, for those cases that require technical appraisal of medical accidents, refer the cases to the medical association responsible for the organization of technical appraisal of medical accidents for appraisal. Technical appraisal, by both parties *** with the medical association in charge of medical malpractice technical appraisal work entrusted to the organization of the appraisal. Therefore, medical malpractice appraisal and medical fault appraisal has the above difference, in fact, is different in all aspects, relatively speaking, medical malpractice is more serious, I hope to help you.