Denuncias por mala práctica odontológica en Costa Rica: Análisis de 124 casos en el período 2015 - 2020 / Dental malpractice lawsuits in Costa Rica: analysis of 124 cases in the period 2015-2020

Resumen Introducción: En Costa Rica las demandas por mala práctica, mala praxis o responsabilidad profesional se encuentran tipificadas bajo el delito de lesiones culposas según el Código Penal de Costa Rica. Este estudio tiene como propósito describir las características de todas las demandas analizadas por la Unidad de Odontología Forense del Departamento de Medicina Legal en un período de seis años (2015-2020). Materiales y métodos: Se realizó una revisión detallada en la base de datos del Sistema de Medicina Legal (SIMEL) del Departamento de Medicina Legal del Organismo de Investigación Judicial de la totalidad de denuncias de "mal praxis" odontológica presentadas desde el 01 de enero de 2015 hasta el 31 de diciembre de 2020. La información recopilada fue tabulada en Excel e incluyó la clasificación por año, especialidad odontológica relacionada, sexo del denunciante y resultado del análisis pericial. Resultados: El análisis de los datos permitió determinar que de las 124 denuncias las disciplinas con mayores porcentajes fueron la cirugía oral y maxilofacial (39,52%), implantes dentales (16,94%) y ortodoncia (12,9%). Más de dos terceras partes (66,12%) de las denuncias corresponden a mujeres y dentro de los resultados de las pericias un 10% de los casos resultaron positivos, un 32% son negativos y un 58 % resultan no concluyentes. Conclusiones: El expediente odontológico completo es indispensable para lograr determinar un nexo de causalidad entre los hechos investigados y los resultados de un tratamiento; en Costa Rica los procedimientos invasivos generan mayor posibilidad de demandas, las mismas pueden ser evitadas mediante un adecuado manejo de los riesgos y complicaciones, comunicación adecuada paciente-tratante y manejo de las expectativas del tratamiento.

Abstract Introduction: In Costa Rica, dental malpractice lawsuits (professional liability) are classified under the crime of culpable injuries according to the Criminal Code of Costa Rica. The purpose of this study is to describe the characteristics of all the claims analyzed by the Forensic Dentistry Unit of the Department of Legal Medicine in a period of six years (2015-2020). Materials and methods: A detailed review was carried out in the database of the Legal Medicine System (SIMEL) of the Legal Medicine Department of the Organismo de Investigación Judicial (Judicial Investigation Agency) of all the complaints of dental "malpractice" filed since January 1, 2015 to December 31, 2020. The information collected was tabulated in Excel and classified by year, related dental discipline, sex of the complainant and the result of the expert analysis. Results: The data analysis determined a total of 124 complaints, the disciplines with the highest percentages were oral and maxillofacial surgery (39.52%), dental implants (16.94%) and orthodontics (12.9%). More than two thirds (66.12%) of the complaints correspond to women and within the results of the forensic report 10% of the cases were positive, 32% negative and 58% inconclusive. Conclusions: The complete dental record is essential to be able to determine a causal link between the investigated facts and the results of a treatment; in this study more than 50% of the files where incomplete, invasive procedures such as oral surgery generate a greater possibility of lawsuits that could be avoided through proper management of risks and complications, adequate patient-caregiver communication, and management of treatment expectations.

Aspectos médico legales en mastología. Demora en el diagnóstico de cáncer de mama como motivo de conflicto legal. / Medical legal aspects in mastology. Delay in the diagnosis of breast cancer as a reason for legal conflict.

Pocas situaciones generan mayor angustia en el profesional médico como la de recibir una demanda por mala praxis. Los reclamos medico legales en cáncer de mama están centrados, de acuerdo a la mayor parte de la bibliografía internacional, en el retraso en el diagnóstico de cáncer de mama, si bien existen reclamos legales en el ámbito del tratamiento, estos son menos frecuentes. En EEUU la primera causa de juicios por mala praxis son los daños obstétricos, y la segunda causa es el retraso en el diagnóstico de la patología oncológica, estando en primer lugar el cáncer de mama; el riesgo de reclamo médico legal se calcula en 1/1000 canceres de mama; no hay estadísticas fiables en nuestro país pero extrapolando estos resultados seria esperable unas 20 demandas anuales. El perfil de riesgo es una paciente joven, premenopausica, con una masa autopercibida que es subestimada en la consulta clínica y/o por los estudios por imágenes. Una buena relación médico-paciente y una correcta documentación de la historia clínica es la mejor prevención, trabajando en forma normatizada y de acuerdo a guías nacionales e internacionales. Fomentar el trabajo en equipo y la formación de Unidades de Mastología en las instituciones es una forma de trabajo multidisciplinario que resulta en beneficio tanto de la paciente como de los profesionales.

There are few situations can generate distress for medical professionals like receiving a malpractice lawsuit. Medico legal issues in breast cancer are focused, according to the most international bibliography, on the delay in diagnosis of breast cancer. Even though legal claims exist concerning about treatment, those are less frequent. In USA, obstetric damages are the first cause of malpractice lawsuit and the second one is the delay in diagnosis of oncological pathology being the breast cancer at the first place. The risk of legal medical claim is calculated at 1/1000 breast cancers. There are no reliable statistic in our country but extrapolating these results, it would be expected around 20 demands per year. The risk profile is a young premenopausal patient with a breast mass self-perceived which is underrated by the doctor or imaging studies. A good doctor patient relationship and an accurate report in medical records is the best prevention, working in a standarized way according to international and national guides. We must persuit to encourage teamwork and Mastology Units organisation over all institutions is a multidisciplinary way of working toreach the patients benefit as well as professionals.

An analysis of 445 lawsuits of medical damage liability disputes in Beijing / 中华医院管理杂志

Objective To identify departments involved, and the appraisal and compensation of such disputes in Beijing, for preventive recommendations. Methods A retrospective descriptive statistical analysis was carried out to retrieve and extract keywords from the first-instance judgments totaling 445 cases of medical damage liability disputes from 2014 to 2016 in Beijing. This analysis covered the age, disease, departments involved, liability judgment among other information. These cases were published at the website of China judgment documents. Results Patients with musculoskeletal connective tissue diseases, circulatory system disease and tumor accounted for the most lawsuits. The departments involved with more disputes were the department of gynecology and obstetrics (80/445, 18. 0％), orthopedics (69/445, 15. 5％), and emergency department(45/445, 10. 1％). 83. 8 percent of the disputes were found with medical quality problems;and 84. 3％ were lost with compensations. Conclusions It is imperative to elevate the diagnosis and treatment level on musculoskeletal connective tissue diseases, circulatory system disease and tumors, and take precautions against disputes at such key departments as gynecology and obstetrics department, orthopedics department, and emergency department. Other precautions include normalized medical record writing, medical risk disclosure, higher medical quality and patient safety.

No fault compensation in perinatal medicine in Japan-from results for 8 years

No fault compensation in perinatal medicine has been established to provide aid to patients in the event of disability due to a medical accident during delivery and to strive to resolve disputes quickly that contributes to reduce medical malpractice suit in the field of perinatal medicine. Furthermore, this system is aimed to establish a mechanism that achieves higher quality of obstetric care by analyzing the causes of accidents. This system is operated by Japan Council for Quality Health Care and 99.9% of childbirth facilities in Japan registered with this compensation system. Compensation system has two major functions including compensation and cause analysis and recurrence prevention based on cases. Compensation eligibility is reviewed in the Review Committee at the organization in Japan Council for Quality Health Care and currently 1,717 cases are judged as eligible cases out of 2,250 since 2009. The cause of each eligible case is analyzed in the Cause Analysis Committee one by one. The Cause Analysis Committee has 7 independent subcommittee and each subcommittee members are consistent of obstetricians, neonatologists, pediatricians, midwives and lawyers. Original cause analysis report is sent to childbirth facility and patient's family. Questionnaire survey demonstrated that 73% of childbirth facilities and 65% of patient family were satisfied with the cause analysis report. The number of medical lawsuit in obstetrics and gynecology is significantly decreased compared to those in all medical departments since the compensation system was introduced suggesting that these cause analysis reports may contribute the decrease in medical lawsuits. The major purpose of the Recurrence Prevention Committee is striving to prevent future cases of cerebral palsy and to improve the quality of obstetric care. To accomplish the purpose, the committee routinely collect information from individual cases and analyze quantitatively and epidemiologically. Furthermore the committee choose subject from cases to discuss for future prevention and provide wide public disclosure of the information with recommendation. The committee issued 6 reports until now and these reports have been distributed to childbirth facilities, perinatal medicine-related scientific society and administrative agencies.

Judicialização da saúde e diálogo institucional: a experiência de lages (SC) / Judicialization of health and institutional dialogue: theexperience of the city of Lages (State of Santa Catarina, Brazil)

A judicialização do direito à saúde tende a ser pensada sob o prisma da propositura de ações judiciais, mas existe uma série de estratégias extrajudiciais que podem ser desenvolvidas com a presença do Judiciário. O objetivo deste artigo consiste em analisar a interação entre o Judiciário, os profissionais de saúde e a gestão na efetivação do direito à saúde. Para tal, foi realizada uma pesquisa em parceria com o Conselho Nacional de Justiça em 2013 e 2014 no município de Lages (SC), que buscou analisar as estratégias locais desenvolvidas. A experiência de Lages versou sobre o Núcleo de Conciliação de Medicamentos ou que, a partir da interação com o Consórcio Intermunicipal e com os atores políticos e jurídicos, passou a ser ferramenta de diálogo institucional. Esses arranjos permitiram uma atuação predominantemente extrajudicial e fomentaram o diálogo entre os diversos atores locais. O resultado foi a redução da litigiosidade e a ampliação de arranjos institucionais dialógicos.

The judicialization of health tends to be thought through the prism of lawsuits, but there are lots of consensual strategies that can be developed within the Judicial Branch. The purpose of this article is to analyze the interaction between the Judicial Branch, health professionals and the representatives in realizing the right to health. To this end, it was held a research in partnership with the Brazilian National Council of Justice in 2013 and 2014 in the municipality of Lages (State of Santa Catarina, Brazil) to investigate the local strategies developed. The Lages experience approached the Center for Conciliation of Health Requests and its interaction with the Inter-municipal Consortium and the political and legal actors, which became an institutional dialogue tool. These arrangements allowed a predominantly extrajudicial action and fostered the dialogue between various local actors. The result was litigation reduction and the expansion of dialogical institutional arrangements.

A Study on the Current Status of Medical Lawsuits in Orthopedics in Korea / 대한정형외과학회잡지

PURPOSE: Through the analysis of orthopedics lawsuit rulings, the purpose of this study is to understand the current trends of medical lawsuits in orthopedics in Korea. MATERIALS AND METHODS: An analysis of medical lawsuits in orthopedics was conducted. As the study method, a quantitative analysis was performed on 341 cases. RESULTS: The average period of lawsuits, from the occurrence of the medical accident to end of the ruling, took an average of 4.22 years. The most frequent procedure that was the main cause of the medical accidents was surgery, at 46.3%. When surgery is the main procedure that caused the medical accidents, the result of examining the types of surgeries showed that spine surgery had the highest percentage. For the outcome of the accident, the highest number of cases resulted in disability and for the final court outcome, 40.5% ruled partially in favor of the plaintiff (the patient) with acknowledgement of only the damage incurred due to medical error of the total sum claimed, and dismissal of the claim made by the plaintiff (patient) accounted for 34.3%; 26.1% of cases develop infection. For the amount of claim for damage, the average amount of claim was 181,998,036 won; in the judgement amount, the average amount of judgement was 58,897,161 won. CONCLUSION: The most frequent procedure in orthopedics was surgery and spine surgery comprised a large proportion of these surgeries. Future studies to determine root causes of medical accidents should be conducted to reduce medical lawsuits and to plan against the repeating of medical accidents.

Proving Causation With Epidemiological Evidence in Tobacco Lawsuits / 예방의학회지

Recently, a series of lawsuits were filed in Korea claiming tort liability against tobacco companies. The Supreme Court has already issued decisions in some cases, while others are still pending. The primary issue in these cases is whether the epidemiological evidence submitted by the plaintiffs clearly proves the causal relationship between smoking and disease as required by civil law. Proving causation is difficult in tobacco lawsuits because factors other than smoking are involved in the development of a disease, and also because of the lapse of time between smoking and the manifestation of the disease. The Supreme Court (Supreme Court Decision, 2011Da22092, April 10, 2014) has imposed some limitations on using epidemiological evidence to prove causation in tobacco lawsuits filed by smokers and their family members, but these limitations should be reconsidered. First, the Court stated that a disease can be categorized as specific or non-specific, and for each disease type, causation can be proven by different types of evidence. However, the concept of specific diseases is not compatible with multifactor theory, which is generally accepted in the field of public health. Second, when the epidemiological association between the disease and the risk factor is proven to be significant, imposing additional burdens of proof on the plaintiff may considerably limit the plaintiff's right to recovery, but the Court required the plaintiffs to provide additional information such as health condition and lifestyle. Third, the Supreme Court is not giving greater weight to the evidential value of epidemiological study results because the Court focuses on the fact that these studies were group-level, not individual-level. However, group-level studies could still offer valuable information about individual members of the group, e.g., probability of causation.

Médicos, advogados e indústria farmacêutica na judicialização da saúde em Minas Gerais, Brasil / Doctors, lawyers and pharmaceutical industry on health lawsuits in Minas Gerais, Southeastern Brazil / Médicos, abogados e industria farmacéutica en la judicialización de la salud en Minas Gerais, Sudeste de Brasil

OBJETIVO: Descrever as relações entre médico prescritor, advogado e indústria farmacêutica em ações judiciais contra o Estado. MÉTODOS: Estudo descritivo retrospectivo com base nas informações dos expedientes administrativos dos processos judiciais com demandas por medicamentos contra o Estado de Minas Gerais movidos entre outubro de 1999 e outubro de 2009. As variáveis estudadas foram: sexo, idade e doença dos beneficiários das ações, origem do atendimento médico (público ou privado), médico prescritor, tipo de representação jurídica e medicamento solicitado. Foi realizada análise descritiva das variáveis com a distribuição de frequências. RESULTADOS: Foram analisadas 2.412 ações judiciais referentes a 2.880 medicamentos solicitados, com 18 fármacos diferentes. Entre esses, 12 são fornecidos pelas políticas de assistência farmacêutica do Sistema Único de Saúde (SUS). Os medicamentos mais solicitados foram adalimumabe, etanercepte, infliximabe e insulina glargina. As principais doenças dos beneficiários foram artrite reumatóide, espondilite anquilosante, diabetes mellitus e doenças pulmonares obstrutivas crônicas. Houve predomínio de representação por advogados particulares e atendimento por médicos do setor privado. Entre as ações representadas pelo escritório A, 43,6% tiveram um único médico prescritor para o adalimumabe e 29 médicos foram responsáveis por 40,2% dos pedidos do mesmo fármaco. Apenas um médico foi responsável por 16,5% das prescrições de adalimumabe, solicitado por apenas um escritório particular de advocacia, em 44,8% dos pedidos. CONCLUSÕES: A maior representatividade de médicos do setor privado e advogados particulares pode trazer prejuízo à equidade. Os dados sugerem associação entre médicos e escritórios de advocacia nas solicitações dos medicamentos. Esse quadro é um indício de que a Justiça e a medicina têm sido utilizadas para atender aos interesses da indústria farmacêutica.

OBJECTIVE: To describe the relationship between the prescribing doctor, lawyer and pharmaceutical industry in lawsuits against the state. METHODS: Retrospective descriptive study based on data from administrative files, relating to lawsuits involving medicine demands, in the state of Minas Gerais, Southeastern Brazil, from October 1999 to October 2009. RESULTS: A total of 2,412 lawsuits were analyzed with 2,880 medicine requests, including 18 different drugs, 12 of them provided through Pharmaceutical Policies of the Brazilian National Health System (SUS). The most frequent medicines requested included were adalimumab, etanercept, infliximab, insulin glargine and tiotropium bromide. The main diseases were rheumatoid arthritis, ankylosing spondylitis, diabetes mellitus, and chronic obstructive pulmonary disease. Private lawyers and doctors were predominant. The results revealed the association between doctors and law offices on drug requests. Among the lawsuits filed by the office A, 43.6% had a single prescriber to adalimumab, while 29 doctors were responsible for 40.2% of the same drug prescriptions. A single doctor was responsible for 16.5% of the adalimumab prescriptions, being requested through lawsuits filed by a single private law office in 44.8% of legal proceedings. CONCLUSIONS: A greater representation of doctors and lawyers from the private sector can hinder equity in health. The results revealed the association between doctors and law offices on drug requests. This is an indication that justice and medical practice have been used, at certain times, to serve the interests of the pharmaceutical industry.

OBJETIVO: Describir las relaciones entre médico prescriptor, abogado e industria farmacéutica en acciones judiciales contra el Estado. MÉTODOS: Estudio descriptivo retrospectivo con base en las informaciones de los expedientes administrativos de los procesos judiciales con demandas por medicamentos contra el Estado de Minas Gerais, Sudeste de Brasil, movidos entre octubre de 1999 y octubre de 2009. Las variables estudiadas fueron: sexo, edad y enfermedad de los beneficiarios de las acciones, origen de la atención médica (público o privado), médico prescriptor, tipo de representación jurídica y medicamento solicitado. Se realizó análisis descriptivo de las variables con la distribución de frecuencias. RESULTADOS: Los medicamentos más solicitados fueron adalimumabe, etanercepte, infliximabe e insulina glargina. Las principales enfermedades de los beneficiarios fueron artritis reumatoide, espondilitis anquilosante, diabetes mellitus y enfermedades pulmonares obstructivas crónicas. Hubo predominio de representación por abogados particulares y atención por médicos del sector privado. Entre las acciones representadas por la oficina A, 43,6% tuvieron un único médico prescriptor para el adalimumabe, y 29 médicos fueron responsables por 40,2% de los pedidos del mismo fármaco. Sólo un médico fue responsable por 16,5% de las prescripciones de adalimumabe, solicitado por sólo una oficina particular de abogacía, en 44,8% de los pedidos. CONCLUSIONES: La mayor representatividad de médicos del sector privado y abogados particulares pudo traer perjuicio a la equidad. Los datos sugieren asociación entre médicos y oficinas de abogacía en las solicitudes de medicamentos. Este escenario es un indicio de que la justicia y la medicina han sido utilizadas para atender a los intereses de la industria farmacéutica.

Um enfoque sanitário sobre a demanda judicial de medicamentos / A sanitary focus on medicines lawsuit

No Brasil, apesar dos avanços da assistência farmacêutica, permanecem falhas na garantia do acesso dos cidadãos aos medicamentos pelo Estado. Nos últimos anos, vem crescendo a reivindicação de medicamentos por parte do cidadão via sistema judiciário. Os objetos dessas solicitações são tanto os medicamentos em falta na rede pública como aqueles ainda não incorporados pelo Sistema Único de Saúde. Este fenômeno pode ser analisado sob diferentes perspectivas, inclusive a sanitária, entendida aqui como os desfechos sobre a saúde dos indivíduos que demandam estes medicamentos. O presente texto busca discutir as principais características das demandas judiciais frente aos seguintes aspectos: o uso racional de medicamentos, o uso de evidências científicas para a indicação terapêutica proposta e o quanto as demandas se justificam diante do conceito de acesso adotado pelo campo da assistência farmacêutica. Ponderações podem ser feitas no sentido de minimizar os riscos à saúde dos demandantes de medicamentos por via judicial, sobretudo quando o objeto da ação são medicamentos não pertencentes às listas de fornecimento público, ou com uso off label, ou desprovidos de registro no país. Considera-se que o Judiciário, a partir do fornecimento de medicamentos, busca garantir a saúde dos demandantes, e assim a dignidade da pessoa humana. Cabe ressaltar que este objetivo só será atingido quando a garantia da saúde estiver associada aos aspectos que certificam a segurança do paciente, inclusive no uso de medicamentos.

In Brazil, in spite of advances in the field of pharmaceutical care, problems in assurance, by the State, of access to medicines persist. Since the early 1990s, the judicial demand of medicines by citizens has increased. The lawsuits demand medicines that are out-of-stock in the public sector as well as medicines that have not yet been incorporated by the Brazilian Health System. This phenomenon may be analyzed under different perspectives, including the health perspective, which is basically related to health outcomes for these individuals. This paper discusses the main characteristics of judicial demands, especially regarding the rational use of medicines, the use of scientific evidence to examine and substantiate the intended therapeutic use, and the justification of litigation as a means of access to medicines, in light of the concepts of access adopted by the field of pharmaceutical services in Brazil. Health risks to individuals demanding medicines through the Judiciary must be scrutinized when the demanded medicines do not belong to essential medicines lists, when their indication may be viewed as off-label, or if they have not obtained market approval in the country. The assumption is that the Judicial System aims to warrant the health of plaintiffs and in this ultimately the dignity of the individual. But this objective will only be met if in guaranteeing health all aspects of safety for the individual are involved, including the use of medicines.

Medicolegal Consideration of Acute Appendicitis: Based on Judicial Precedents

PURPOSE: We wanted to describe the characteristics of the malpractice claims related to acute appendicitis and to identify medico-legal problems and potential preventability of such claims. METHODS: A retrospective study was performed by reviewing the records at websites that furnishes judicial precedents. The records on closed malpractice claims involving acute appendicitis were abstracted from the files that were available for analysis. The records were reviewed and analyzed to determine the causes of the lawsuits, the pre- and post-operative diagnoses, the comorbid conditions of the patient, the causes of death or post-operative complications, the results of the lawsuits and the factors associated with a successful defense. RESULTS: Twelve closed claims involving acute appendicitis were founded in the malpractice data. Two claims were Supreme Court decisions and ten were district court decisions. The causes of lawsuit were categorized as follows: delay in diagnosis or operation, mistakes during operation, inappropriate management of postoperative complications and problems related to general anesthesia. 3 claims were assigned to each of the 4 particular causes of lawsuits. The most common causes of death were abscess with peritonitis and sepsis, and ten of which resulted in indemnity payments. CONCLUSION: Appropriate explanation and attention in the diagnosis/progress of appendicitis, getting an informed consent from the patient, the patients' comorbid conditions, early decision making in diagnosis/operation and proper care in the operation were critical for preventing lawsuits related to acute appendicitis.

Medicolegal Aspects on Central Venous Catheterization Related Injury / 대한구급학회지

BACKGROUND: We describe the characteristics of malpractice claims related to central venous catheterization and identify causes and potential preventability of such claims. METHODS: A retrospective study was performed by reviewing records at Lawnb and Lx CD-rom. The records on closed malpractice claim related to central venous catheterization were abstracted from the files available for analysis. The records were reviewed and were analysed to determine the factors associated with a successful defense. RESULTS: Twelve closed claim cases, related to central venous cathetertization were reviewed in the data for malpractice. Catheter-related complications were pneumothorax, hemothorax, cardiac tamponade, pyothorax, hematoma due to arterial puncture, pseudoaneurysm. Almost cases resulted in indemnity payment and verdict for patient. CONCLUSIONS: Although malpractice claims related to central venous catheterization were uncommon, they resulted in high rate and amount of indemnity payments. In pediatric patient, catheterization should be performed with attention. Clinicians should consider the underlying disease of patients and do any pretreatment if needed. Post-procedural radiologic confirmation can improve patient outcome and is also associated with decreased indemnity risk. Informed consent is also important.

Application of Epidemiology to the Tobacco Lawsuit Cases in KOREA / 한국역학회지

Over the half of last century, epidemiology has witnessed that tobacco causes lung cancer. Therefore, lung cancer lawsuits against tobacco companies have been raised in many countries. However, a discrepancy between epidemiology dealing with population-based causal association and lawsuit dealing with individual-based evidence has happened. This article discusses application of epidemiology to the tobacco lawsuit cases in Korea. Epidemiological studies such as double blind randomized controlled clinical trials and cohort studies give clinicians important information on decision-making for the treatment of an individual patient and predicting prognosis. Epidemiological data have also been applied to the diagnosis of a worker's claim on occupational disease or work-related disorder. Illegality is generally recognized in the court when direct causal relationship between offending action(s) and damage(s) is proved and the damaged must prove illegality of the offender(s). The probability theory was emerged to reduce the responsibility especially when a plaintiff has a difficulty in proving causal relationship and illegality due to long-term duration or complexity or poor condition of the plaintiff such as environmental lawsuit cases. In relation to the probability theory, a theory was raised that a causal relationship is proved legally if an epidemiological causal relationship between offending action(s) and damage(s) is proved. Based on these evidences and theories, we show our opinion that epidemiological data are applicable to the individuals such as tobacco lawsuit cases in Korea.

Legal Aspects of Medical Records / 医学教育

This paper discusses medical records, which are often disputed during lawsuits and play an important role in the factfinding process. There have been no published reports of problems related to medical records or concrete measures to deal with these problems on the basis of a review of judicial precedents. To avoid lawsuits, medical records should be considered in the context of judicial precedents (previous court rulings). The present paper therefore analyzes basic matters related to medical records that were disputed during lawsuits, in relation to judgments obtained in previous court rulings, to determine the judicial role of medical records and their ownership. Although the ownership of medical records is unclear, we believe that patients have some ownership rights over their medical records, that hospitals are responsible for the control of the records, and that physicians have the obligation to use and prepare them. Therefore, medical records can be seen as being jointly owned by the medical care provider and the patient. Analysis of relevant judicial precedents has also allowed us to clarify essential points related to avoiding lawsuits.

Analysis of Medical Malpractice Claims and Future Object in the Emergency Department

BACKGROUND: lawsuits associated with medical troubles are increasing rapidly. Beginning with 69 cases in 1989, the annual rate of increase has reached above 36%. After the system of emergency medical specialist was born in 1995, it was expected that medical lawsuit cases would increase due to the importance of the emergency medical specialist's role to the emergent patients. METHODS: A database was established for medical lawsuits(1982~1998, n=254), and lawsuits involving the emergency department(1982~1998, n=16) were selected from that database. RESULTS: In criminal cases, the prosecutor's win rate was one out of four(25%). In civil cases, the prosecutor's win rate was 8 out of 10(80%); that is, the rate was higher than in general medical cases. CONCLUSION: To reduce the number of lawsuit following medical troubles in the emergency department, we should give careful attention and appropriate cure to patients who visit the emergency center.

Evidential burden in medical dispute lawsuits / 中华医院管理杂志

The author first expounds evidential burden, its relationship with presumption, and the distribution and transformation of the two in medical dispute lawsuits. Then he puts forward nine points for discussion regarding the inverosion of evidential burden in medical dispute lawsuit, including limitation in explaining medical behavior and causality due to limitations in the development of the medical sciences, the unavoidable nature of invasion characteristic of medical behavior, and limitations to evidences that can be provided by medical institutions. Lastly, the author sets forth some strategies that hospitals can adopt in response to the situation: ①standardizing medical behavior and doing a good job of daily work, such as fully and correctly keeping medical records and normalizing the drawing up of diagnosing documents and medical evidences; ②conducting sound theoretical research and protecting their own lawful rights and interests.

The trend of strict liability: reflection on current trials for medical dispute lawsuits / 中华医院管理杂志

Existing laws in China indicate that the fault liability doctrine should be applied in tort lawsuits. However, there is currently the trend in the judicial field of applying strict liability with regard to medical institutions. Strict liability, realized chiefly through the reversal of the burden of relief, stresses the protection of the victims. By citing typical cases, the authors analyze the application of strict liability in medical malpractice disputes: ①Patients have no burden of relief on whether hospitals made errors in the harms brought about. ②There are limitations to reasons for hospitals to get exempted from liabilities; they cannot use reasonable care as pleas. ③The relationship between medical actions and patients' damages is presumed. The authors hold that although the use of strict liability may improve reasonable care by medical workers, yet when mature medical liability insurances are not in place, the application of strict liability in trials adds to the liability of medical institutions and their staff and cannot lead to genuine settlement of patient-doctor disputes. judicial institutions ought to apply strict liability in strict accordance with the law and avoid making compensations for patients at the compromise of judicial justice.

Issues hospitals need to pay attention to in medical lawsuits / 中华医院管理杂志

Hospitals frequently end up losing medical lawsuits due to the following factors: inappropriate appointment of legal representatives, misconception and wrong application of the standard of proof required for lawsuits, ignorance of the time limit for submitting lawsuit documents, and lack of communication with the judges on the proof value of medical literature. In order to guarantee their legitimate rights and interests, hospitals ought to appoint health lawyers and medical experts as their legal representatives, have a good grasp of the standard of proof of reasonable probability, adhere to the time regulations in lawsuits, strengthen communication with the judges with regard to medicine, and understand the legal rules of arbitration. Only by doing so can their legal rights and interests avoid being encroached upon.