third-party mediation for medical disputes(医疗纠纷第三方调解)

DOI: 10.3760/cma.j.issn.0366-6999.20140523
School of Public Health, Central South University, Changsha, Hunan 410013, China (Cao YL, Tian YQ and Wen XB)
Institute of Medical Information, Chinese Academy of Medical Sciences, Beijing 100020, China (Cao YL, Wei ZY and Li W)
China-Japan Friendship Hospital, Beijing 100029, China (Wang JJ)Medical Legal System Committee, Chinese Hospital Association, Beijing 100081, China (Zheng XQ)
Shandong Jining First People’s Hospital, Jining, Shandong 272002, China (Jin QH)
Correspondence to: Dr. Tian Yongquan, School of Public Health, Central South University, Changsha, Hunan 410013, China (Email: tianyq@)
This study was supported by grants from the National Social Science Fund of China (No. 11&2D177), and China-Australia Health and HIV/AIDS Facility (HSS902)
Perspective
Application of third-party mediation for medical disputes:an introduction of Chinese experience
Cao Yanlin, Wang Jiangjun, Zheng Xueqian, Jin Qinghan, Tian Yongquan, Wen Xuebin, Wei Zhanying and Li Wu
M
edical disputes refer to disputes that occur when patients and their families are unsatisfied with medical services offered by medical workers.1 China stands at the point of social transformation 2 with various social contradictions, one of which is the increasing medical disputes. According to the statistics from the Minister of Health, there are more than one million medical disputes in China per year, with an average of 40 per medical institution.3 The China Hospital Management Association’s survey that was completed in 2013 showed that medical workers were attacked with injures by patients in 63.7% of hospitals in 2012, rising from 47.7% in 2008. The percentage of hospitals with more than six such incidences was 8.3% in 2012, which was twice more than that in 2008 (4.5%). It is increasingly common to see medical workers abused and threatened. The average number of such occurrences for each hospital was 20.6 in 2008, but 27.3 in 2012. The study also shows that there were 40 serious violence incidences against medical workers causing severe injuries, disabilities, and even death between 2003 and 2012, which had affected the normal diagnoses and treatments in hospitals and undermined social harmony and stability.4
In April 2009, a perfect medical disputes handling mechanism was put forward in “The opinions of the CPC central committee and the state council on deepening the reform of the medical and health care system”.5 In January 2010, the Ministry of Health, the Ministry of Justice, and the China Insurance Regulatory Commission jointly issued the “Proposals on People ’s Mediation of Medical Disputes,” to encourage local governments to introducethe people’s mediation mechanism, according to the “media tion first” principle.6 In August 2010, “the People ’s Mediation Law of the People ’s Republic of China ” was passed in the 16th meeting of the 11th Standing Committee of National People’s Congress, offering an important legal protection for medical dispute mediation. By September 2012, More than 2 600 participants’ mediation committees had been set up, which settled more than 56 000 medical disputes. Now, the third-party mediation has become one of the most important ways of handling medical disputes in China.
Reasons for China to enforce the third-party
mediation for medical disputes
The third-party mediation mechanism has an obvious advantage in handling medical disputes. First, the dispute
handling methods used previously were unable to settle the increasingly huge number of medical disputes promptly and effectively. The main method of handling medical disputes in China before the establishment of the third-party mediation mechanism were by doctor–patient negotiations and mediations of health administration and litigation, which have their own defects. As to negotiations, they have several shortcomings: (1) subjective,7 (2) less fair due to the unequal status of patients and medical workers,8 (3) weak legal effect,9 (4) misuse of power,10 and (5) erosion of state assets.11 The mediation of health administration has great advantages for the mediation process but also shows its defects in legislation,12 such as limited scope,13 lack of legal effectiveness,14 procedural guarantees,15 passive position, and widely questioned neutrality.16 Litigation has its own problems in complicated procedures,17 high cost,18 rigid judgments,19 ineffectiveness in stopping doctors’ negligent acts,20 and the difficulty for right judgment on professional medical issues.21 Second, the third-party mediation has great advantages in medical disputes in the following aspects. (1) The simplification and flexibility of the procedure can save both time and cost.22 (2) The reconciliation agreement has comparatively better executive power. (3) The openness of content of mediation is conducive to “win-win” situations for both 2 122 patients and medical workers.23 (4) Its confidentiality is conducive to protecting doctor–patients’ privacy.24 (5) It stimulates the improvement of medical and health services.25 Third, there is a long history of mediation tradition that is well practiced in China.
Experience of the third-party mediation for medical disputes in some parts of China
Ningbo, Zhejiang Province has established insurance claims and people’s mediation mechanism for medical
disputes. Four companies, People’s Insurance Company of China; China Pacific Property Insurance Company; China Continent, Property and Casualty; and China Ping’an Property Insurance Company, organized an insurance claims center for medical disputes acting as the agent for medical institutions, which is bonded with people’s mediation. It insists on the principle of settling claims and negotiating first, followed by people’s mediation. The reconciliation agreement after these settlement of claim and negotiation is sealed by the People’s Mediation Committee (PMC) to verify its legal effectiveness.
Tianjing established the People’s Mediation Committee for Medical Disputes (PMCMD). Lead by the Justice Bureau, consisting the Health Bureau, Public Security Bureau, Association of Insurance Supervisors, and media and representatives from communities, the PMCMD formed the handling principles, procedures, and the responsibilities and duties of medical institutions, workers, and patients after the occurrence of medical disputes. Insurance companies shall calculate the compensation according to legal items and standard, and compensate it for medical institutions after the ratio for the responsibility of doctors and patients in medical malpractices is confirmed.
Shaodong County, Hunan Province, has also established a PMCMD to handle the medical disputes, lead by the Justice Bureau of the county. Health Bureau organized a professional assessment panel with skilled personnel, and the Public Security Bureau formed a team for handling an assortment of public security cases triggered by medical disputes.
Beijing established a PMCMD as well, growing out of the Medical Dispute Mediation Center of the Beijing Health Law Association. After accepting a case, the committee calculated and confirmed the ratio of responsibility of the doctors and patients and the compensation in medical malpractices, communicating with both patients and medical workers. If both sides agree with the mediation result, they shall sign a reconciliation agreement under the auspices of the PMCMD, which shall be a basis for the compensation of the medical liability insurance.
Jining city, Shandong Province, has established a Doctor–patient Rights Association. It integrates the current handling methods, including liability identification agencies (such as medical negligence identification agency and justice identification agency), people’s mediation, administration mediation, court mediation, arbitration, and litigation, to provide multiple and “one-stop” services.
The standard handling procedures of medical disputes and related compensation rules have been formed in different areas, though the specific mediation institutions and modes are considerably different. In addition, the location to handle medical disputes has also been successfully moved out from hospitals, which plays an increasingly important role in handling medical disputes. It maintains the normal medical routine of hospitals and also offers better ways for patients to assert their own rights. Between March 2008 and February 2010, 1 020 medical dispute cases were settled in Ningbo, Zhejiang Province, of which 97.3% were settled by negotiation and mediation. Between February 2009 and April 2010, 249 cases were settled by the Tianjing PMCMD, in which 215 cases were successfully mediated, with a success rate of 86.5%. Between June 2011 and the end of December 2011, 571 cases were settled by the Beijing PMCMD, where 513 cases were successfully mediated, with a success rate of 89.84%. Between April 2006 and June 2010, the Jining Doctor–patient Rights Association accepted 839 cases and settled 659 cases with a success rate of 78.5%. Between March 2009 and July 2010, the PMCMD of Shaodong County, Hunan Province, accepted and settled 147 cases with a success rate of 100%.26 The way of the third-party mediation in the settlement of medical disputes has played an important role and received active progress, but mediation institutions of medical disputes around China are facing many problems, such as deficient personnel and insufficient funds.
Non-litigation resolution for medical disputes has become an international tendency
Many countries and regions have increasingly made emphasis on the role of mediation in medical dispute resolution. In 1997, the American Bar Association, the American Arbitration Association, and the American Medical Association jointly established the Medical Dispute Resolution Committee, suggesting the utilization of medical dispute mediation.27,28 In New South Wales, Australia, Health Care Complaints Committee accepted complaints about medical institutions from patients and settled them by means of mediation.29 In Germany, medial disputes can be mediated by the Arbitration Committee and experts panel formed by the Medical Doctor Association.30 On 4 March, 2002, the Patient Safety and Quality Improvement Act was passed in France, which amended certain regulations of Public Health Code (Code de la sante public) by introducing a conciliation procedure. Mediation and compensation committees for medical negligence were established in every region to handle the medical disputes.31 In Taiwan, China, medical dispute conciliation includes normal mediation, county level mediation, and justice conciliation. In addition, according to the 99th act of Medical Law, authorities at the city and county levels shall have Medical Councils which are responsible for medical dispute conciliation.32 In order to prompt the resolution of medical disputes, Medical Disputes Disposal Act (Draft) was accomplished after eight reviews by the Department of Health of Taiwan, China in 1998. In conclusion, according to the above mentioned analysis, non-litigation resolution, especially mediation has become a tendency for handling medical disputes.
Imposing the legislation on medical care is the foundation for effective prevention and proper handling of medical disputes
First, medical legislation is conducive to define the
government’s responsibility in maintaining people’s health; increase government’s investment in health care; perfect people’s medical security system; and provide safe, effective, convenient, and cheap health care service for the public. Meanwhile, it enforces the qualification management and admission supervision of medical institutions and workers, supervises and assesses the risk of safety and appropriateness of new medical technologies and equipments, and perfects the supervision system and the mechanism of medical security. In addition, laws and regulations related to medical dispute disposal should be perfected. Medical Law was established successively in Japan and Taiwan, China, which plays a very important role in medical dispute handling.
Active supports and cooperation from the
government is an important factor for the
functioning of the third-party mediation
mechanism
Handling medical disputes, which is of concern of many parts of the society, is a complicated system. Thus, the third-party mediation agencies alone cannot coordinate all parties. From the above mentioned surveys in Ningbo, Jining, Tianjing, and Shaodong Counties, the government plays an important role in the policy making of medical dispute handling, the establishment of the third-party mediation agencies, and the mediation and handling of medical disputes. Therefore, the third-party mediation agencies should actively acquire support and cooperation from the government, to create a good policy environment. Establishing stable fund-raising channels and building stable and professional work force are the hinges for the third-party mediation agencies Stable fund-raising channels assure the functioning of the third-party mediation agencies. Currently, the third-party mediation agencies in China are facing a shortage of funds. Funding resources are weakly standardized, which affects the sustainable development of these organizations. Although funds for people’s mediation organizations are regulated in the legal form, they vary greatly from place to place due to the different economic conditions. For instance, funds are sufficient in economically developed East China but insecure in under-developed areas. To have a healthy and sustainable development of the third-party mediation organizations, stable fund-raising mechanisms should be formulated. The above mentioned “professional work force” means the full-time mediators with professional knowledge employed by the third-party mediation organizations, which is the prerequisite for satisfying mediation results. These specialists can be recruited from the community through strict examinations, and have them professionally trained afterwards. Retired medical workers and legal service workers of public security, who are enthusiastic in third-party mediation, can also be employed to keep the profession of the third-party mediation agencies. “Stable” means the personnel in the third-party mediation agencies should be stable. Measures like offering stable income and various insurances, providing training and learning oppertunities, and ensuring the safety and security of mediators, should also be adopted.
REFERENCES
1. Dong HJ, Hospital Management. Shanghai: Shanghai Medical
College Press; 2000: 118-119.
2. Wang YK. The Specificity of Current Social Transformation.
(Accessed April 10, 2011 at / GB/12710907.html)
3. Ministry of Health intends to focusing on the implantation of
people’s mediation system. (Accessed March 3, 2010 at http:// /bm/content/2008-11/02/content_972599.
htm?node=7)
4. The Inceasing Occurance of Violence in Medical Places.
(Accessed August 16, 2013 at / htmlpage/38/380989.htm?docid=380989&cat=0I&sKeyWord= null.)
5. The Central Committee of the Communist Party of China and
State Council on deepening the health care system reform. 2009.
6. Comments on Imposing People’s Mediation for Medical
Disputes. (Accessed June 20, 2010 at / publicfiles/business/htmlfiles/mohylfwjgs/s3581/201001/45726.
htm.)
7. Druckman D, Olekalns M. Emotions in negotiation. Group
Decis Negot 2008; 17: 1-11.
8. Dispute resolution reference guide. (Accessed at http://www.
justice.gc.ca/eng/pi/dprs-sprd/ref/drrg-mrrc/03.html)
9. Zheng CY, Yang WY, Li L. How medical institutions dispose
medical disputes by mediation (in Chinese). People’s Liberation Army’s J Hosp Manag 2005; 12: 362-363.
10. Lu SZ. On legal regulation for medical disputes reconciliation (in
Chinese). J Chongqing Shanxia College 2010; 26: 110-113. 11. Xie P, Cao JH, Wang L. Revelation from foreign disposal
methods for medical disputes. Clin Misdiag 2009; 22: 3-4. 12. Fang PQ, Wang XL. Reflection and exploration of multi
mediation measures for medical disputes. Chin Med Legislat 2009; 17: 37-39.
13. Chen MY. Comparative research on non-litigation disposal
measures for medical disputes. J Law Med Sci 2006; 13: 181-190.
14. Hong ZD. How to compensate for medical negligence. Beijing:
China Legal Publishing House, 2005: 32-33.
15. Zhu ZX. Administrative mediation system in social
transformation. Res Administr Law 2006; 2: 72-77.
16. Wu YQ, Chai JZ. Conceive of Chinese mediation system for
medical disputes. Chin Hosp Manag 2009; 29: 52-55.
17. Meadows KK. Resolving medical malpractice disputes in
massachusetts: statutory and judicial initiatives in alternative dispute resolution. Suffolk J Trial App Advoc 1999; 4: 165-167.
18. Watanabe Y. Learning and bargaining in dispute resolution:theory
and evidence from medical malpractice litigation. Job Market Paper 2004: 1-40.
19. Galton E. Mediation of medical negligence claims. Cap Univ
Law Rev 2000; 28: 321-330.
20. Dauer EA. When the law gets in the way: the dissonant link of
deterrence and compensation in the law of medical malpractice.
Cap Univ Law Rev 2000; 28: 293-305.
21. Yee F. Mandatory mediation: the extra dose needed to cure the
medical malpractice crisis. Cardozo J Conflict Resol 2006; 7: 393-444.
22. Taylor DW. Assessment and plan for medical malpractice:
quality improvement through mediation. DePaul J Health Care L 2003; 6: 343-356.
23. DeAngelo LM. Mediation in health care settings: some
theoretical and practical concepts. J Clin Psychol Med Set 2000;
7: 133-139.
24. Dauer EA. A therapeutic jurisprudence perspective on legal
responses to medical error. J Leg Med 2003; 24: 37-50.
25. Sybblis S. Mediation in the health care system: creative problem
solving. Pepperdine Disp Resol Law J 2006; 6: 493-518.
26. Zheng XQ, Gao SK, Wang JJ, Cao YL, Jin QH, Wen XB, et
al. Analysis on third-party mediation mechanism for medical disputes in some regions of China. Chin Hospital 2012; 16: 5-7.
27. Health care commission issues recommendations. (Accessed
July 20, 2010 at /p/articles/mi_qa3923/ is_199811/ai_n8823554/.)
28. American Arbitration Association, American Bar Association,
American Medical Association. Commission on Health Care Dispute Resolution – Final Report. (Accessed July 20, 2010 at /ama1/pub/upload/mm/395/healthcare.
pdf.)
29. Nash L, Daly M, Johnson M, Walter G, Walton M, Willcock S,
et al. Psychological morbidity in Australian doctors who have and have not experienced a medico-legal matter: cross-sectional survey. Aus NZJ Psychiatry 2007; 41: 917-925.
30. Jost TS. Schlichtungsstellen and Gutachterkommissionen: the
German approach to extrajudicial malpractice claims resolution.
Ohio St J Disp Resol 1996; 11: 81-104.
31. Jiang Y. Construction of Compensation System for Medical
Accident Damages by Patient Safety and Quality Improvement Act of France in 2002. (Accessed November 23, 2010 at http:// /article/default.asp?id=46283.)
32. Chiu YC. What drives patients to sue doctors? The role of
cultural factors in the pursuit of malpractice claims in Taiwan.
Soc Sci Med 2010; 71: 702-707.
(Received March 4, 2014)
Edited by Cui Yi。