Medical dispute or continued dual track

Huja Kunli Zimme prepares to sue the first affiliated hospital of Tianjin University of Traditional Chinese medicine July 20.　　Li Jinmei that the death of his father infected with Pseudomonas aeruginosa was due to the illegal operation of the first affiliated Hospital of Tianjin University of Traditional Chinese medicine in the course of medical treatment and nursing, and in April 2009, she sued the hospital in a lawsuit. On June 11, Li Jinmei filed a lawsuit against the court for medical damages that had been played 1.5. "Because there is no hospital complete medical record material, can not be certified."　　"Li Jinmei that the Tort Liability Act, which began from July 1, will help her solve the problem, so she chooses to drop the lawsuit and then prosecute." A medical dispute lawyer introduced, he contacted and Li Jinmei idea of the same parties are not a few. "Many of them have high hopes for the new law, ready to be prosecuted after it has been implemented, or withdrawn before prosecution."　　"There are media reports, after July 1, medical lawsuits or a blowout." In order to remove the ills of medical and patient disputes, the Tort Liability Act makes a special chapter on the liability for medical damage by 11 articles.　　Most people think that the new law terminates the dual-track medical dispute, and it is advantageous to solve the dispute between doctors and patients in identification and compensation.　　However, the Judicial Practice Department courts have a very different interpretation of the new 11 article.　　A dual-track medical dispute? "We do not want to follow medical malpractice and want to go by medical tort," he said. But the hospital must take the medical malpractice appraisal, according to the medical malpractice compensation.　　"Li Jinmei very helpless.　　The root of the tangle between Li Jinmei and the hospital lies in the dual-track medical dispute that has been widely criticized. The Supreme Court divides medical disputes into two categories, one is medical malpractice disputes and the other is non medical malpractice disputes.　　The former is applicable to the treatment of medical malpractice regulations, the latter applicable to the general rules of civil law and related laws and judicial interpretation of the relevant provisions. The two-yuan standard of the law makes the medical dispute cases appear three kinds of "two-track" in the Judicial Practice: the dual-system of the case, the responsibility of medical accident and the responsibility of medical negligence; two-tier authentication: Medical malpractice appraisal organized by the Medical Association and Medical Fault identification issued by judicial appraisal organization　　On the interpretation of the application of the law in the trial of personal injury compensation and compensation in accordance with the regulations on treatment of medical malpractice.　　The existence of dual-track makes it inevitable for both doctors and patients to argue about the causes, appraisal and compensation standards. In the abolition of the dual-track issue, the academic and judicial circles have been enthusiastic.　　The "Tort Liability Act" came out, the media reported most of the view that the new law can end the dual-track. Li Jinmei's lawyer, Cho Xiaoqin, also served as "the illegal medical practice in Peking University Hospital," the patient's agent, he said, in the "Tort liability law" before the introduction, because only the "medical Malpractice treatment Regulations" and no upper law, so the dual-track has been unable to be resolved. This "Tort liability law" specifically set up "medical tort" "Special law" clause, from the legislative level to solve the dual-track problem.　　Therefore, in the application of law, "Tort liability law" will be applied to the "treatment of malpractice regulations." Law on Tort liability, the lawsuit of medical dispute is unified as medical tort. "There will be no more medical malpractice compensation standards and medical malpractice."　　"Cho Xiaoqin said.　　If this view is established, the doctor-patient dispute, the suffering side will usher in a favorable monorail era-do not have to do their own not believe that the medical identification, directly to the judicial identification procedures, in accordance with the higher compensation standards of personal tort. Does the judicial practice circle understand the different Cho Xiaoqin "subversive system changes" in the judicial practice?　　The people's Court of Beijing Fengtai District Judge Tian Zhihua but gave the opposite answer.　　Tian Zhihua told reporters that the judicial practice of the dual-track medical disputes will not end, because the basic principle of applicable law is that the new law is better than the old laws and not the old law, since the ordinance has not repealed, "the dual-track unification is illusory." There is no conflict between the implementation of tort liability law and the system of medical malpractice appraisal.　　Tian Zhihua pointed out that the matter, the standard of compensation or appraisal, the relevant aspects of the dual-track in the new law before and after the implementation of "no difference." "Although the new law does not change the dual-track of medical disputes, the courts have not applied the dual track in judicial practice, and the dual-track system has not affected patients ' rights in most cases." "Tian pointed out that in the judicial practice, medical malpractice identification is not necessary to do, the majority of patients will choose the degree of medical fault identification and to claim compensation," if the parties do not advocate medical malpractice compensation, the court will not end with the results of medical malpractice identification to determine compensation.　　"Cho Xiaoqin that the view of the field is only for the judicial practice in Beijing," said as far as the whole country is concerned, in the medical disputes before the implementation of the tort liability law, medical malpractice must be appraised, and if it is a medical accident, it should be paid according to the lower standard of medical malpractice and cannot be applied to the patients ' compensation for personal injury.　　In response to Tian Zhihua said the dual track still exists, Cho Xiaoqin expressed opposition. "After the implementation of the Tort Liability Act, there should be no more ' medical malpractice compensation dispute '," the report said.　　Zhuo believes that the "Tort Liability Act" to replace the "medical malpractice treatment regulations" to adjust the medical and patient civil disputes function.　　Behind the different viewpoints of the two judicial practitioners, the judicial practice has a mixed understanding of the tort liability law.　　Some and try pointed out that the Supreme Court should make clear provisions on judicial interpretation of the issue of whether the effectiveness of the treatment of medical malpractice is abolished and how the dual-track of medical disputes can be solved. The beneficial change that the suffering party can expect according to Tian Zhihua, tort Liability Law has no effect on the dual-track of medical disputes in judicial practice.　　What is the beneficial change that the suffering party can expect? The implementation of the new tort liability law has made some slight changes in the rules of the burden of proof of the lawsuit, in particular, it has been refined in the presumption of hospital fault. Tian Zhihua explained that according to 58th of the Tort Liability Act, medical institutions have violated laws, administrative regulations, regulations and other relevant diagnostic and therapeutic norms.Of the provisions of the three kinds of circumstances, causing damage to patients, presumed that the medical side has the fault. "In fact, it was previously presumed that the hospital's fault included these three cases, but this law expressly proposed that the Court directly presumed that the hospital had a fault in the case more clearly."　　Tian stressed. Cho Xiaoqin that the "Tort liability law" for the implementation of Li Jinmei to the rights of hope. "Prior to the lawsuit, although the court opened three times, but the suffering side has not been able to get the hospital complete medical records, can not be quality certificate."　　"Tort Liability Law" will change the suffering party "because they do not have the full medical records of the case of losing or obstruction of litigation."　　The Tort Liability Act stipulates that once a medical institution "conceals or refuses to provide medical records relating to a dispute" or "forges, tampered with or destroys medical records", it "presumes that the medical institution is at fault", which in turn protects the legitimate rights and interests of the affected Party.　　In addition to refining the presumption of hospital fault, in Tian Zhihua's view, the new law for the affected Party is another good news is clear the medical side of the statement obligations, thus safeguarding the patient's choice.　　For those Li Jinmei who want the new law to add weight to their rights, Tian Zhihua says the new law is not retroactive, and in Li Jinmei's case, the new law will not apply if medical tort occurs before the new law is implemented. In addition, even if the new law is applied, "a Tort Liability Act, the trial of medical dispute cases does not actually have much effect". Tian Zhihua said, "to really solve the dual-track medical disputes, the issue still needs the legislature to make clear provisions." "The law of tort is probably not applicable to the case," Li Jinmei said, looking at it first.