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