Establishing compulsory medical liability insurance system is an inevitable requirement to realize socialized sharing of medical damage compensation. Due to the lack of theoretical research, there is still a lack of in-depth research on compulsory medical liability insurance in China. This paper analyzes the compulsory medical liability insurance system from the aspects of the choice of development mode, the reasonable determination of liability scope, insurance rate and liability limit, in order to attract more attention.
[Keywords:] medical liability insurance, compulsory medical liability insurance, damages
First, the practical needs and significance of developing compulsory medical liability insurance
Medical liability insurance plays an important role in dispersing the compensation risk of hospitals or doctors, preventing and reducing medical disputes and safeguarding the interests of patients. However, this kind of insurance has not been favored by hospitals since it was fully introduced in 2000. On the contrary, hospitals are generally indifferent to this, and their enthusiasm for insurance is not high, which makes medical liability insurance face the dilemma of weak development. The reason is that the defect of medical liability insurance is an important factor restricting its development. In the current development of medical liability insurance, there are some problems such as low enthusiasm of medical institutions and serious adverse selection. For example, there are 55 1 hospitals at all levels in Beijing (including hospitals directly under the central government and military hospitals). In 2003, there were less than 20 hospitals with medical liability insurance, some of which were very high in payout ratio. Even in Shenzhen, one of the most developed insurance markets in China, during the four years from 1999 to 2003, the accumulated premium income of medical liability insurance was only over 2 million yuan, and the proportion of insured medical institutions was less than 5%, which was extremely inconsistent with the annual premium growth rate of Shenzhen insurance market of nearly 20%.
The lagging development of medical liability insurance not only makes it difficult to establish a socialized risk sharing mechanism in the medical industry, but also makes the patients' damage not fully compensated, which is not conducive to safeguarding the legitimate interests of patients. However, the problems existing in the current operation of medical liability insurance prove that it is difficult to adapt to the needs of formal development by completely adopting voluntary insurance. In this case, a new payment mechanism and insurance system for medical damage compensation should be established, that is, the compulsory medical liability insurance system, that is, the state establishes the insurance system through legislation and establishes the compulsory insurance obligations of medical institutions and doctors, so as to spread the risk of medical damage compensation and make the victims' losses compensated in time. Compulsory medical liability insurance conforms to the development trend of medical liability insurance and has strong practical significance.
(a) compulsory medical liability insurance is to play the role of medical liability insurance in maintaining and protecting the interests of patients.
Although medical liability insurance has incomparable advantages in safeguarding and realizing patients' interests, it is facing an extremely embarrassing situation. On the one hand, the lack of compensation ability of medical institutions has seriously affected the realization of the victim's claim for damages, which needs to be solved through a certain insurance system. Facts show that most hospitals in China are small in scale, with low economic benefits, insufficient self-accumulation, and some even lose money for a long time. After the medical accident, these hospitals may not be able to bear the liability for compensation, so that the victims can not get adequate relief. It has become a social consciousness to realize medical damage compensation through liability insurance system. On the other hand, although medical liability insurance has been implemented for many years, in the case of voluntary insurance, medical institutions generally have opportunistic choices and refuse to insure, which leads to the inability of the medical industry to establish medical liability insurance, and patients still face difficulties in claiming compensation and making up for medical damage.
Based on the widespread risk of medical damage compensation and the current situation that patients' compensation for damages cannot be fulfilled, it is necessary to establish the legal obligation of medical institutions to insure by legislation and establish a compulsory medical liability insurance system, so as to give full play to the role of medical liability insurance in protecting patients' legitimate rights and interests and preventing medical disputes.
(two) the development of compulsory medical liability insurance is the need to spread the risk of hospital compensation and reduce the pressure of compensation.
Due to the lack of effective risk dispersion mechanism, another prominent drawback of the current medical damage compensation model is that the compensation risk of medical institutions is highly concentrated, thus bearing greater compensation pressure and operational risks. Especially with the inversion of the burden of proof in medical tort litigation, the expansion of the scope of damages and the improvement of compensation standards, the compensation risk and pressure of medical institutions will be further aggravated. Therefore, a medical liability insurance system should be established to realize the transfer of damages through insurance, that is, the tort liability concentrated in a hospital should be dispersed to the society, so as to socialize damages and reduce the compensation pressure of hospitals.
Nevertheless, many hospitals and doctors lack knowledge and understanding of medical liability insurance. Some don't even know the existence of medical liability insurance; Although some hospitals are interested in medical liability insurance, they still hold a wait-and-see attitude, or refuse to take insurance because of lack of risk prevention awareness, or because of short-term cost-benefit analysis. When voluntary insurance is not active, promoting the development of medical liability insurance by compulsory means is conducive to establishing and perfecting the risk prevention mechanism of hospitals, realizing the socialization of medical damage compensation, and thus ensuring the sustained and healthy development of medical and health undertakings.
(3) Compulsory insurance is an effective means to solve the current insufficient demand in the medical liability insurance market.
At present, the enthusiasm of medical institutions for insurance is not high, and adverse selection is serious, which leads to insufficient market demand for medical liability insurance. There are many reasons, of course, which are related to the shortcomings of medical liability insurance itself, but the reasons of medical institutions themselves can not be ignored. First of all, many hospitals lack awareness of risk prevention and think that their medical technology is excellent and medical disputes are unlikely to occur, so they lack the internal motivation to spread risks through insurance mechanisms. Secondly, in the case of unequal status of doctors and patients, low probability of losing medical litigation and low compensation amount, hospitals generally have a fluky psychology about medical damage compensation, thus lacking the internal motivation to buy medical liability insurance. Finally, the dislocation of medical institutions' demand for medical liability insurance also inhibits the market demand for liability insurance. Many hospitals not only hope to pass on all damages arising from medical activities through medical liability insurance, but also hope to realize the transfer of medical disputes and get rid of them. Obviously, the hospital's expectation of medical liability insurance is misplaced, which has actually exceeded the function of medical liability insurance.
The problem of insufficient demand in the medical liability insurance market can be gradually solved by cultivating the market, improving market competitiveness and updating products, but this model relies entirely on the self-evolution of the market, so it develops slowly and lacks efficiency. In the era of system transition and economic transformation, the cultivation of market demand and the improvement of competition mechanism are inseparable from the appropriate intervention of the state. Therefore, it is indispensable for the development and perfection of the medical liability insurance market for the state to intervene appropriately by economic and legal means. Legislation of medical liability insurance as statutory insurance and compulsory medical institutions can fundamentally solve the problem of insufficient market demand under the voluntary insurance mode, thus rapidly promoting the development of medical liability insurance.
(4) Compulsory medical liability insurance adapts to the development trend of objectification of liability principle and socialization of damage compensation sharing in modern tort law.
Modern tort law has gradually become a way of thinking in tort law from the concept of scattered damage. It believes that the damage can be internalized and borne by the enterprises that create dangerous activities, and then dispersed through the price function of goods or services or insurance (especially liability insurance). It can be seen that modern tort law pays more attention to the dispersion of damage compensation risks while pursuing damage compensation, that is, how to realize the risk concentrated on infringers through certain channels is borne by most people. For high-risk industries and occupations, it is very important to have a certain risk dispersion mechanism. If all the compensation risks arising from medical treatment are still borne by hospitals and doctors, it will undoubtedly increase the operational risks of hospitals and the occupational risks of doctors, which is unfavorable to the healthy development of medical institutions and medical undertakings. In this context, it is an inevitable requirement to establish a risk dispersion mechanism based on medical liability insurance and realize the socialization of medical damage compensation.
(5) The development of compulsory medical liability insurance meets the needs of the reform and development of the medical and health system.
At present, the government of China has regarded promoting the reform of medical and health system as an important part of the reform of socialist market economy system and promoting the all-round development of society. However, the payment of medical damage compensation and the socialization of medical compensation risk are important contents of health system reform, which are closely related to the reform of medical insurance system, drug circulation system and medical price system. Transferring the risk of medical compensation only through the price mechanism will not only directly lead to the increase of the price of medical services, thus damaging the accessibility and fairness of medical services, but also lead to the deterioration of the doctor-patient relationship and sharp contradictions. In this case, establishing a certain risk sharing mechanism and realizing the socialized sharing of compensation risks by medical institutions are related to the sustained and healthy development of medical and health undertakings and the steady advancement of health system reform.
Second, the specific ideas of developing compulsory medical liability insurance
(A) the development model of compulsory medical liability insurance
Based on the development and promotion modes of medical liability insurance at home and abroad, compulsory medical liability insurance can adopt two development modes, namely, administrative promotion mode and legislative leading mode. The mode of administrative promotion is that administrative organs force medical institutions to buy medical liability insurance through administrative power, thus forcibly promoting the development of medical liability insurance with administrative power. For example, the compulsory medical liability insurance implemented in Beijing from June 5438+ 10, 2005 adopted this model, that is, public medical institutions were required to participate in medical liability insurance through administrative orders issued by health administrative departments. The dominant mode of legislation is to clarify the insurance obligations of medical institutions and doctors in the form of legislation, and stipulate that doctors must purchase medical liability insurance during their practice, so that medical liability insurance becomes legal insurance.
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