论强制性医疗损害赔偿保险制度的建立

通过对我国医疗损害赔偿给付现状的分析,对国外医疗责任保险及给付的比较,认为:只有通过立法来建立一种强制医疗损害赔偿保险制度才能较合理地解决医疗损害受害人损害赔偿的兑现问题,同时,又不使医疗法人的正常医疗行为因此受到影响;并进一步指出了建立该种保险制度所存在的问题和对策。     

Is there an acceptable answer to rising medical malpractice premiums?

This article explores the key issues involved in the attempts at reform of the present medical malpractice system. Investigating the effects that federal tort reform legislation would have on physicians, patients, lawyers, and the medical malpractice insurers, Dr. Gunnar succinctly outlines the issues surrounding the present "crisis in healthcare" and explores the separate interests involved. The article examines the economic forces influencing the medical malpractice insurance industry, reviews previous tort reform, and predicts the future of federal tort reform legislation. Dr. Gunnar concludes by proposing alternatives for malpractice reform.     

Patient Compensation Funds: legislative responses to the medical malpractice crisis

Fifteen states have created Patient Compensation Funds in response to the increased cost and reduced availability of medical malpractice insurance associated with the so-called "medical malpractice crisis." Patient Compensation Fund statutes limit health care providers' liability to a specified amount, and establish state-administered funds to compensate victorious malpractice plaintiffs for damage awards in excess of that amount. This Note examines the Patient Compensation Fund mechanism, evaluates its effectiveness as a compensation system for malpractice victims, and recommends particular provisions that might enhance its effectiveness. The Note concludes that the Patient Compensation Fund mechanism is an effective means of increasing the availability and of reducing the cost of medical malpractice insurance, and should be adopted by other states experiencing a "medical malpractice crisis."     

医疗责任保险的思考

大力发展医疗责任保险,对医疗执业过失给患者造成的损害进行充分赔偿,在保障患者和医疗机构及其医务人员的合法权益,优化医疗环境和医疗公共秩序方面有重要的促进作用。由于我国医院主体是公立医院,侵权法人身损害赔偿相对于综合医院尚未到重大程度,并且综合性医院每年发生的医疗过失案件基本确定,选择满足面临危险的医院财务安全需要的医疗责任保险模式,如医疗责任保险信托等,才能促进医疗责任保险的发展。实践表明,商业性医疗责任保险不宜成为我国医疗责任保险的主体。建立独立的医疗过失纠纷调解鉴定机构,才能保证医疗责任保险顺利开展。     

论医疗责任保险——从法律经济学的角度切入

医疗责任保险是从国外引入的一种制度,目的之初在于,将医师的过错责任诱发的巨大风险社会化,以期医师安心于治理病患,而病患通过保险获得相应的保险费用保障自身的权益,缓和较为尖锐的医患关系和社会矛盾。但医疗责任保险发展的现实情况却是极其不理想的,学界对于医疗责任改革已有基本共识,具体设计上却甚少有人提出更为细致的建议。可以从法律经济学这个分析的全新视角,借助成本效益、纳什均衡、博弈的思维进路,以期为医疗责任保险制度的设计另辟蹊径。     

Can no-fault compensation of impaired infants alleviate the malpractice crisis in obstetrics?

In 1987, Virginia initiated no-fault compensation for birth-related neurological injuries in an attempt to ensure the availability of malpractice insurance for the state's obstetricians. This paper explores some possible causes for the refusal of Virginia's insurers to write malpractice coverage for obstetricians and analyzes the ability of the act to resolve the medical malpractice crisis in obstetrics. It also examines the effect of this limited no-fault compensation scheme on obstetricians' incentives and on the welfare of neurologically damaged children.     

No-fault cerebral palsy insurance: an alternative to the obstetrical malpractice lottery

Sixty percent of malpractice premiums paid by obstetricians go to cover suits for alleged birth-related cerebral palsy (CP). Yet substantially less than half of that money goes to CP victims, and less than 10 percent of children with CP receive any compensation at all from tort suits. This paper proposes a system that would compensate all children born with CP for most handicap-related expenses, in exchange for which the children would be foreclosed from bringing suits alleging birth-related malpractice. Malpractice would be policed by a state board, which would investigate all CP cases. This proposal would be more equitable than current systems. It would also be less expensive, since it would avoid costly litigation and decrease the cost of obstetrical malpractice insurance.     

Medical liability and health care reform

We examine the impact of the Affordable Care Act (ACA) on medical liability and the controversy over whether federal medical reform including a damages cap could make a useful contribution to health care reform. By providing guaranteed access to health care insurance at community rates, the ACA could reduce the problem of under-compensation resulting from damages caps. However, it may also exacerbate the problem of under-claiming in the malpractice system, thereby reducing incentives to invest in loss prevention activities. Shifting losses from liability insurers to health insurers could further undermine the already weak deterrent effect of the medical liability system. Republicans in Congress and physician groups both pushed for the adoption of a federal damages cap as part of health care reform. Physician support for damages caps could be explained by concerns about the insurance cycle and the consequent instability of the market. Our own study presented here suggests that there is greater insurance market stability in states with caps on non-economic damages. Republicans in Congress argued that the enactment of damages caps would reduce aggregate health care costs. The Congressional Budget Office included savings from reduced health care utilization in its estimates of cost savings that would result from the enactment of a federal damages cap. But notwithstanding recent opinions offered by the CBO, it is not clear that caps will significantly reduce health care costs or that any savings will be passed on to consumers. The ACA included funding for state level demonstration projects for promising reforms such as offer and disclosure and health courts, but at this time the benefits of these reforms are also uncertain. There is a need for further studies on these issues.     

Medical malpractice reform and insurer claims defense: unintended effects?

In response to recent and past medical malpractice insurance crises, most states have implemented reforms meant to stabilize premiums and coverage availability. The importance of understanding whether these reforms implicitly affect the behavior and incentives of plaintiffs, attorneys, medical providers, and malpractice insurers in the intended way is crucial to policy makers, if they are to achieve their goal. This study specifically examines the effect of reforms on the claims defense efforts of insurers, given that defense expenses account for approximately 30 percent of malpractice premiums. Using state data for the period 1998-2002, we regress claims defense expenses against a variety of reform variables. These include seven tort reforms (noneconomic damage caps, punitive damage limits, attorney fee limits, modified collateral source rule, modified joint and several liability doctrine, mandatory pretrial screening, and statute of limitations) and two government-sponsored insurance mechanisms (joint underwriting associations and patient compensation funds). Claims defense expenses are found to be higher in the presence of noneconomic damage caps, punitive damage limits, and attorney fee limits--an unintended and counterproductive effect of reform--but are lower with mandatory pretrial screening and patient compensation funds.     

我国医疗损害诉讼举证责任分配

举证责任分配问题是整个医疗损害诉讼的核心问题,它关系到原被告双方在诉讼中各自承担哪些举证责任。我国医疗损害贡任举证规则经历了一个变迁过程,根据现行法律法规规定,本文试图从医疗损害责任构成要件、过错推定惰形、免责情形以及一些特殊的医疗侵权责任情形的角度,分析原被告双方在医疗损害诉讼中各自需要承担哪些举证责任,从而明确我国的医疗损害诉讼举证责任分配的基本原则,以期达到公正客观解决医疗纠纷的日的。     

Doctors,Lawyers, and Malpractice Insurance: Is Physician Discipline or Legal Restrictions the Answer?

Legislatures have made numerous attempts to reduce medical malpractice costs by changing the legal rules governing malpractice suits. Additional changes through physician discipline are also under consideration. This paper - tests whether these changes have had the desired effects, using cross-state data. The empirical findings are that the results of changes in the legal rules are generally as expected, but that physician discipline seems to have little impact on either insurer costs or insurance rates, even after the discipline rules have been in effect for up to four years.     

Medical malpractice as reflected by the forensic evaluation of 4450 autopsies

A multicentre retrospective analysis of 4450 autopsies carried out due to suspicion of medical malpractice in 17 German institutes of forensic medicine from 1990 to 2000 was performed for the German Federal Ministry of Health. During the time period analysed an increase of cases could be mentioned. The main results of the study are: in the cooperating institutes the total number of autopsies due to suspected medical malpractice ranged from 1.4 to 20%. In more than 40% of the cases preliminary proceedings were started because the manner of death was certified as non-natural or not clarified. Hospital doctors were more affected by medical malpractice claims than doctors in private practice. However, the number of confirmed cases of medical malpractice was higher for doctors in private practice than for hospital doctors. Although surgery is still at the top of the disciplines involved in medical malpractice claims the number of confirmed surgical cases was below the average. Mistakes in care were confirmed to be above the average. Medico-legal autopsies are still a very sufficient method to evaluate cases of medical malpractice: 2863 cases could already be clarified by autopsy. Up to now there is no systematic registration of medical malpractice charges in Germany. A systematic registration should be initiated to build up and/or improve error reporting systems and, thus, to improve patient safety. Compared to other sources of medical malpractice claims (arbitration committees of the medical chambers, reference material of health and insurance companies, files of civil courts) the data of the present multicentre study are in so far unique as only lethal cases were evaluated and a complete autopsy report was available as basis of an expert opinion in alleged medical malpractice cases.     

Controlling large malpractice claims: the unexpected impact of damage caps.

Indiana's comprehensive malpractice reforms, inaugurated in 1975, include a cap on damages, a mandated medical review before trial, and a state insurance fund to pay claims equal to or greater than $100,000. We have found that the amount of compensation going to claimants with such large malpractice claims in Indiana is, on average, substantially higher than in Michigan and Ohio. Indiana's mean claim severity between 1977 and 1988 was $404,832, while the means for Michigan and Ohio were $290,022 and $303,220, respectively, with the difference between these three means being highly significant. Although data on claim and claimant characteristics reveal considerable interstate variation, the results of regression analyses show that Indiana claim payment amounts are higher than Michigan or Ohio payments, independent of the effect of factors such as sex, age, severity of injury, allegations of negligence, and year of settlement.     

The effects of tort reform on medical malpractice insurance markets: an empirical analysis.

I use statewide loss ratio data to assess empirically the manner in which tort reforms have affected relative prices and profitability, and underwriting risk in the medical malpractice insurance industry. The empirical evidence suggests that the imposition of statutory ceilings on recoveries both decreased risk and improved relative profitability. Reforms that codified the required standard of care appeared to have a beneficial effect on relative profitability in certain cases.     

Loss of a chance in medical malpractice litigation: expanding liability of health professionals versus providing justice to those who have lost

The loss of a chance doctrine in medical malpractice litigation is essentially based on the perceived unfairness of denying recovery to a patient when a health provider's malpractice has reduced the patient's chance of a better outcome. It is the thesis of the article that loss of a chance must the recognised at law, notwithstanding that the chance is less than even or not subject to the benefit of statistical and/or scientific proof and that each lost chance should be assessed according to the value of that chance. Varying approaches to allocating value to the chance lost are examined both historically and internationally. The author contends that the policy arguments--which include potential for increased medical malpractice litigation, tainted reputations and an increase in professional indemnity policies--are insignificant when compared to the value and quality of human life and therefore cannot be supported.     

日本医师会医师赔偿责任保险制度介评

始建于1973年的日本医师会医师赔偿责任保险制度,经过近40年的发展,已成为日本医疗事故纠纷解决体系中的不可或缺的机制。该制度的实施不仅为医师供给了价格低廉的保险产品,还为医疗事故纠纷的解决提供便捷渠道。尽管这一制度还不尽完善,但这并不妨碍我们从中汲取经验和启示。     

The unrealized potential of malpractice arbitration

Although the use of arbitration in the commercial arena has increased tremendously in recent years, there has been a reluctance to adopt arbitration of medical malpractice claims in place of litigation. After discussing the benefits of arbitration in medical malpractice cases, Professor Metzloff examines why the use of arbitration has not become predominant, discussing such factors as judicial hostility, failure of state statutes designed to encourage arbitration, and lack of hard evidence that arbitration works. Professor Metzloff then explores the future of arbitration in medical malpractice cases, citing examples from his own work experience with Duke Law School's Private Adjudication Center, and discusses attributes which would make malpractice arbitration successful in the future.     

The notion and classification of expert errors

The author presents the analysis of the legal and forensic medical literature concerning currently accepted concepts and classification of expert malpractice. He proposes a new easy-to-remember definition of the expert error and considers the classification of such mistakes. The analysis of the cases of erroneous application of the medical criteria for estimation of the harm to health made it possible to reveal and systematize the causes accounting for the cases of expert malpractice committed by forensic medical experts and health providers when determining the degree of harm to human health.     

我国医疗损害诉讼举证责任分配

举证责任分配问题是整个医疗损害诉讼的核心问题,它关系到原被告双方在诉讼中各自承担哪些举证责任。我国医疗损害责任举证规则经历了一个变迁过程,根据现行法律法规规定,本文试图从医疗损害责任构成要件、过错推定情形、免责情形以及一些特殊的医疗侵权责任情形的角度,分析原被告双方在医疗损害诉讼中各自需要承担哪些举证责任,从而明确我国的医疗损害诉讼举证责任分配的基本原则,以期达到公正客观解决医疗纠纷的目的。     

医学会从事医疗损害鉴定之合法性研究

本文回顾了我国医疗纠纷鉴定体制发展历程,分析了医学会鉴定与司法鉴定的优缺点。在此基础上,认为在现阶段,医学会参与医疗损害鉴定具有一定的、但并不充分的法律依据,具有相对的合法性,医学会应属准法定鉴定部门。可以通过最高人民法院制定司法解释或卫生部制定规章的方式使其尽快转正。尽管如此,医学会作出的鉴定结论并不具有必然的证明力,其鉴定程序和鉴定书形式等亦应符合法律规定,而鉴定人署名并出庭接受质证是其鉴定结论被法院采信的前提条件。