Author:Li Hongqi

It’s widely believed that the United States is now in the midst of its third medical malpractice crisis following the other two occurred in the mid-1970s and 1980s.
US policymakers have been addressing medical disputes in many ways in an effort to avert a future crisis. Along with tort law and insurance reforms, the limited no-fault liability compensation system and the alternative dispute resolutions (ADR), such as mediation or arbitration, are designed to expedite resolution of complaints and to boost its efficiency.
Interestingly, some of our current medical legislations，which are under mounting pressure to reform in China, are happened to be those goals pursued by US tort reforms.

Is different with our country, the US independent incident of malpractice legal regime, the processing incident of malpractice legal basis mainly has not been “the right infringement law” the theory, the legal precedent and sees here and there in the public law and the civil law legal rule.

Because the American law is one by the case-law and the written law mix constitution relative disperser system, the federation is different with various states law, but the incident of malpractice dispute involves the medical service, the law and insures many professions, therefore the US incident of malpractice legal regime exists not not coordinated, not identically even is unavoidably the contradictory situation.

One, the US incident of malpractice crisis and the origin

In US, the solution incident of malpractice question traditional way are the medical lawsuits, if the medicinal prescription lost a lawsuit, the insurance company is responsible in the insurance scope to the trouble side payment medical service damage compensate, not only therefore the incident of malpractice the legal matter, simultaneously also is the medical system and the issurance system question, whether three between coordination is deciding the solution incident of malpractice success or failure.

(1) incident of malpractice crisis reviews

The century 70's intermediate stages, the US incident of malpractice case increases sharply, the medical service liability insurance company has paid damages the large amount medical service damage compensate for this, is unable to maintain the normal service operation.Various states insurance company is compelled to enhance the medical service liability insurance tariff, enhances the scope basis medical service specialized differently from 15% to 30% different. Result some are engaged in the high risk medical service activity the medical establishment and practicing physician like the traumatology department, obstetrics and so on, because of cannot pay the high quota insurance premium to close down business or to change professions, the medical service market encountered the huge impact, the patient goes see a doctor has come under the serious influence.This is in the American history the first incident of malpractice crisis.

To the 80's, has stemmed from the similar reason nearly, the insurance company falls into once again the difficult position which is unable to make ends meet, enhances the premium rate to reduce business in abundance to lose, but US insures the surveillance committee public proclamation prohibition insurance company to enhance the insurance premium, can not but withdraw from the market one after another under the financial pressure medical service liability insurance company, finally causes the insurance service seriously insufficient, affects directly the medical service profession.US has experienced the second crisis.

After 2000, the medical service liability insurance company still with difficulty got rid of the economical difficult position, every time received 1 US dollar insurance premium to have equally to pay damages 1.29 US dollar medical responsibility compensation, the main medical service liability insurance company therefore changed ways.The insurance premium excessively is high the question which and the safe service is insufficient also to exist, not only the medical establishment and practicing physician face cannot be paying the insurance premium the question, moreover wants to obtain the medical insurance service more and more to be also difficult. In 2005, American Medicine Association analyzes the report to point out that, 12 states already sank into in the incident of malpractice crisis, because moreover 30 state at the beginning of dew clue, other various states the insurance premium was also low not yet has the crisis.US is experiencing the third crisis.

(2) the incident of malpractice crisis origin analysis

Looked from the representation that, three crisis occurrences all are because the medical service liability insurance company enhances the premium rate and the withdrawal service market result largely; However analyzes thoroughly may know, the US incident of malpractice crisis is actually a result which between it unreasonable medical service system, the legal regime, the judicial convention and the insurance policy affect mutually.

1, the crisis medicine reason

(1) since on century 70's, the medicine technology unprecedented development, the new medicine new therapy brings the benefit to the patient at the same time, also supplements the big medical risk, the incident of malpractice does not fall instead increases.

(2) medicine knowledge has highly the specialization and unknown.The patient often thought doctor should grasp own condition, can make prompt, the accurate diagnosis and the treatment, be in effect it is not so, medical trouble both sides knew inevitably causes the dispute to produce not identically.

(3) social economy development and the human life universal extension requests the more perfect medical service, but the medical service demand increase creates a more tremendous pressure for the medical profession, the medical mistake absolute value along with it ascension.

(4) after medical mistake occurs, because the medical establishment and practicing physician is afraid is sued, is not willing to acknowledge or to cover its medical mistake intentionally, the medical trouble relations worsens day by day.

2, the crisis economical reason

(1) incident of malpractice to increase, insurance company's payment enlarge, because simultaneously the national overall economy is not booming, insurance company's investment income reduces, is unable to flush arrives at the medical insurance the unmet needs, only can be compelled to enhance the insurance premium to draw in the fund.

(2) medical insurance tariff fluctuation, mainly decides according to the state economy situation quality, but is not records the difference treatment based on doctor's accident, premium rate uncertainty enlarge.

(3) incident of malpractice case occurrence, the lawsuit, the decision and the compensation payment often cannot with the safe period synchronization, the insurance company determine when premium rate lacks the precise reference data, quite difficult.

(4) medical insurance belongs to the typical business dealing, but premium rate determination because of medical specialized risk graduation different.Certain state medical market scale is small, lacks the massive policy holders to share the risk, the premium rate very is naturally high.

3, has the crisis legal reason

(1) US legal rule and the judicial environment is beneficial in the patient files the incident of malpractice legal proceeding, but does not have the medical background jury to be easier to support the patient large amount lawsuit request.

(2) medical attorney usually may obtain the patient to win the compensation volume 30% to 50% to spend as the risk proxy, therefore is willing to help the patient to file the medical lawsuit.

(3) US's legal procedure needs to spend the massive manpower, the physical resource uses in recognizing “the medical mistake”, the composition lawsuit expense 60%, causes the lawsuit efficiency not to be high, the very many incident of malpractice cannot solve promptly.

(4) medical lawsuit fill variable, cannot forecast, similar nature case in front of different court and jury, decision possible widely divergent.The minor wound sentences the situation common occurrence which or the severe wound little sentences.

(5) American law are very few to the medical lawsuit limit, the patient is extremely easy to sue them doctor, but counts indicated only has 3% to have the fact and the legal basis to 30% patient's lawsuit.

Two, the incident of malpractice legal regime reform

Incident of malpractice is one involves many social stratification plane in US the complex question, needs to have a set of widespread system solution, not only must reform the right infringement law, but also must reform the medical system and the issurance system.

(1) after first crisis reform measure

As early as when 70's first crisis, in order to solve the social problem which the crisis brings, atonement medical service liability insurance vacancy or insufficient, American various states have one after another appeared many comprehensive reform measure, specially infringes upon the right the legal reform, but finally all is not successful.

1, the union issurance system

This reform measure requests some Dingzhou all purchase medical service liability insurance the unit together to invest especially sets up the spare fund, helps doctors who is engaged in the high risk activity to obtain the insurance.

2, the patient compensates doctors

Who the fund this reform measure is for the purpose of helping not to obtain the medical insurance, all doctors invest together set up the spare fund, uses in sharing some doctor to pay damages patient's medical service damage compensate according to the court decision.

3, the control lawsuit frequency

This reform measure is in order to contain the incident of malpractice case quantity:

(1) the 70 age, many states have cancelled the limitation of action “the discovery rule”, controls patient's lawsuit from the limitation of action.

(2) some states act Fei Shexian for attorney, reduces attorney to participate in the lawsuit the material power.

(3) front some state establishment sues the jury, carries on the entity examination to the medical dispute case, prevented the patient abuses the right of suit.

(4) some states start the incident of malpractice case to hand over by the medical service arbitrate processing.

4, the control lawsuit compensates

This reform measure is in order to limit the compensation amount:

(1) various states make the restrictive regulations to the medical lawsuit compensation highest amount, namely quota compensation.

(2) cancels the medical establishment and doctor or other co-respondents undertakes the joint and several liability legal rule, has own responsibility.

(3) some states cancelled the patient to be possible to obtain the multiple compensations the rule, before the decision patient's need to the jury to indicate clearly it already obtained other compensations.Decides the strict deference actual loss compensation principle.

(4) for reduces the insurance company the payment pressure, some state permission insurance company pays by stages, no longer the stubborn and unyielding person requests the disposable payment.

5, the increase wins the difficulty

This reform measure goal is increases the patient to win the difficulty:

(1) some states revised have known the circumstances of the matter the agreement law, the permission jury decided the patient needed how many informations.

(2) many states revised the medical attention duty standard request, reduces medical personnel's pressure.

(3) some states revised have presented evidence the responsibility principle, the request trouble side must present evidence the proof medicinal prescription existence mistake, but proved the medical behavior and the harm result existence not merely.

The practice proved that, the above reform cannot the effective addressing current crisis and prevented the future crisis, many will adopt the right infringement law reform the state to have the crisis once again in the 80's, moreover at present is experiencing the third crisis, this mainly was because:

1, various states revision right infringement law has suspicion of the illegal constitution, receives the court the force challenge, its effect sells at a discount greatly.

2, the revision right infringement law cannot reduce the medical service liability insurance tariff, also cannot intervene the insurance company the commercial rule, the insurance company pursues forever is “the benefit first”.

3, the incident of malpractice crisis involves the medical profession and the insurance profession field structure question, the right infringement law reform is unable to touch these aspects the question.

Although the forecited right infringement law reform is unpleasant, but measures and so on quota compensation, actual compensation and limit limitation of action truly to reduced the compensation amount and the medical insurance premium have had the influence.

(2) medical dispute legal regime reform newest progress

Solved the new turn medical dispute crisis for the success, the American various states policy-makers is summarizing the past experience lesson, the enlarge medical service, the law and insures three aspects legal regime reform dynamics, explores reform measure which set of systems widespread, coordination, complemented one another.

1, medical service organizational reform

(1) enhancement “permit examination and approval committee” the surveillance function

“the permit examination and approval committee” already exists, the reform key point promotes its display most major function.

①Reduction to suit investigation settling a lawsuit time.

②Cancels illegal practicing medicine legally either creates the serious incident of malpractice the unit or individual disciple of a master permit.

③Notifies male shows receives the punishment the medical establishment and doctor.

④Requests doctor to report on own initiative suffers administrative sanction, civil judgment or criminal indictment.

(2) establishment “the risk management and the patient safety” mechanism

This mechanism is for the purpose of preventing, the appraisal, the appraisal and the solution medical service is wrong.

①When implementation diagnosing and treating behavior, the patient safety is the most important principle.

②Doctor appears the medical service to be wrong, must report immediately.

(3) patient education and the medicine knowledge are popular

①50% above patient cannot understand the medicine knowledge, and cannot make the correct response to the medical information, this has one of medical dispute important reasons.

②The patient education and the medicine knowledge are popular, reduce between the medical trouble the knowledge disparity and the cognition disparity.

③The easy to understand medical information helps the patient to understand its contracts disease, the medical standard and the medical service condition.

④The way may be diverse: Announcement, course, propaganda handbook or consultation and so on.

2, the legal rule reforms

(1) medical establishment responsibility system

Under the American present law, the patient may simultaneously sues doctor and the hospital on the identical fact and the reason.“The medical establishment responsibility system” is the stipulation has when the medical dispute the patient only can sue the hospital, but cannot sue doctor, reduces the medical dispute case to doctor the normal service influence, the enlarge medical establishment's management responsibility.

(2) simple trial program

Agreed after the original defendant that, judge may be suitable the simple trial program, helps original defendant both sides to appraise respective stratagem which ensures success, encourages the bilateral out of court settlement or consults a compensation scope.

(3) the medical court

Medical service court by judge who tries the medical dispute case specially manages, judge through the accumulation correlation knowledge, the experience and the skill, speeds up the medical dispute case trying.

(4) medical service disciplinary board

In 1998, American Medicine Association suggested sets up “the medical service disciplinary board”, examination definite medical service mistake, solution medical service dispute.

The examination divides three steps: In front of the hearing examines, the official hearing and reconsiders.The basis “senseless suing” has not been removed in front of the hearing, other cases enter the official hearing procedure.Committee's decision may appeal the federation disciplinary board.

(5) the replaceable incident of malpractice solves the mechanism

US processing incident of malpractice traditional way is the legal proceeding, when the lawsuit consumes takes the trouble, the efficiency is not high.In order to speed up the solution dispute, reduces the expense, avoids the legal proceeding, it is necessary to choose the replaceable incident of malpractice to solve the mechanism, namely medical mediation and medical arbitration and so on non-lawsuit key to the situation.Compares with the medical lawsuit, the medical arbitration has, the economical time, the expense highly specialized is low, medical trouble both sides easily to accept and so on the merits.

(6),the quota compensation

According to the right infringement law, the medical service damage compensate includes three parts generally: Efficient loss compensation, non-efficient loss compensation and punitive compensation. In the former lawsuit, the patient requests the compensation the amount subjective capriciousness to be very big, does not favor the medical dispute the true solution; If simultaneously decision compensation number oversized, aggravates the insurance company inevitably the financial burden, the promotion vicious circle formation and the development, therefore has the necessity carries on the highest amount limit to the non-efficient loss compensation and the punitive compensation.

(7) establishes the non-mistake responsibility compensation mechanism

US medical service dispute not to solve the strength, “the mistake responsibility” the compensation principle concerns with the traditional right infringement method.In recent years US used the non-mistake responsibility compensation processing medical service dispute the step to speed up gradually, in the judicial practice appeared “has been possible to compensate the medical event fast” and “assigns the nature to be possible to compensate the medical event” and so on the legal concepts, some specific medical harm did not need to prove the mistake existence might obtain the compensation. Already the selectivity used the non-mistake responsibility compensation processing medical service dispute in the Virginia state and Florida, but was only restricted in with the childbirth concerned newborn neurotrosis and the medical harm which because the vaccination vaccine caused.

3, the issurance system reforms

(1) insurance premium management

To guarantee supervises the meeting to have to formulate “the insurance premium change” the policy, enhances largely to the insurance premium carries on the examination and the authorization.By the authorization, any insurance company does not have to enhance the insurance premium arbitrarily.

(2),the patient from buys insures

The patient the medical harm purchase insurance which possibly suffers for oneself, no longer limits profits the insurance which Doctor Yu purchases; When has the incident of malpractice, the patient may choose wholesale compensates the way.

(3),the experience tariff system

Experience tariff system request individual practices medicine the recording according to doctor and the accident record definite insurance premium.

(4),the non-mistake medical insurance

Most radical reform is “the mistake is safe” the tradition turns “the non-mistake to be safe”.This insurance implements the fixed quantity compensation to the specific medical harm, take the medical mistake as the foundation, guaranteed each suffers the medical harm the patients all can obtain the just compensation.

In brief, any reform measure all not impossible is a sure card, but also needs to confirm and the consummation in reality.Is contradictory facing the new incident of malpractice crisis and initiation each kind of society, regardless of the American policy-maker reforms the medical system, reforms the legal policy and the issurance system, all needs to study thoroughly, to weigh the advantages and disadvantages.

Certainly, the US incident of malpractice crisis and the reform experience and the lesson, has to us profits from the function positively, is helpful understands our country medical service legal regime correctly in us the good and bad points, also is helpful in us enhances strong points and avoid weaknesses, handles the medical dispute civil case effectively.

[1] Kenneth E. Thorpe “Medical Malpractice in Crisis: Health Care Policy Options,” Washington, D.C., 3 March 2003.
[2] Clark C. Havighurst, Health Care Law and Policy. Foundation Press 1998.
[3] www.csg.org/.../ Taylor+Med+Malpractice+ppt.ppt.