The Cabinet today approved a bill by the Department of Health (DOH) that codifies the mechanism for resolving medical disputes and compensating patients for malpractice. Premier Sean Chen stated this complementary bill will make medical liability more reasonable on physicians and bring about better doctor-patient relationships.
Under this bill, indemnity will be paid in cases where responsibility for medical fault cannot be clearly attributed, said the premier. While this may give rise to a moral hazard, a mechanism has been built into the bill to prevent such hazard. The proposed law will soon be sent to the Legislature for deliberation.
According to the DOH, the medical practice is filled with uncertainties and high risks. If medical personnel inadvertently cause injury or death during treatment, they may be subject to lawsuits by patients and their families. For fear of litigation, physicians may practice defensive medicine rather than medicine in the patient’s best interests. This not only strains their relationships with patients but also keeps medical talent from entering high-risk fields. Patients, on the other hand, are also at a disadvantage under current laws as litigation procedures are often lengthy and costly.
The DOH is therefore proposing this bill to address the issues faced by both patients and doctors involved in medical disputes. The bill’s objectives include protecting the rights of both parties to improve doctor-patient relations, achieving social justice by expediting dispute resolution, and promoting patient safety to raise the quality of medical services.
The main points of the bill are as follows:
I. Strengthen dispute resolution mechanism
1. Reduce lawsuits through arbitration
a. For civil lawsuits, arbitration should be conducted before the case goes to court. (Draft Article 10)
b. For criminal lawsuits (including cases prosecuted by the state or by private individuals, or involving offenses indictable only upon complaint), the prosecutor or judge may refer the case to arbitration with the approval of the patient. (Draft Article 11)
2. Advocate patients’ rights, clarify the truth
a. The medical institution should appoint personnel or a task force to help patients communicate their needs to the hospital. (Draft Article 4)
b. Medical institutions should release medical records within two working days of request. (Draft Article 5)
c. Adopt the provisions of an “apology law,” whereby a doctor may express regret or apology over a medical error, but such expression may not be used against the doctor in court. This increases the likelihood of arbitration and helps uncover the truth. (Draft Articles 6 and 17)
d. Set up a medical counseling mechanism in which an objective, impartial third party helps patients understand medical issues. (Draft Article 7)
e. Fees will not be collected for an arbitration case conducted under this proposed law. If arbitration is settled after a civil lawsuit has gone to court, the patient may also apply for a refund of two-thirds of the court costs. (Draft Articles 23 and 24)
II. Provide timely compensation
1. The no-fault compensation scheme will not be adopted; indemnity should only be provided in cases where responsibility for medical fault cannot be clearly attributed. (Draft Article 31)
2. After applying for medical indemnity, the aggrieved party may not initiate civil or criminal procedures. (Draft Articles 31 and 32)
3. The compensation fund will be financed through various sources, in specific proportions:
a. Sources will include government budgets, hospitals’ payments for medical risk distribution, tobacco health and welfare surcharges, and medical donations. (Draft Article 26)
b. Financing from government budgets and tobacco surcharges combined should not exceed 30 percent of the fund’s total. (Draft Article 27)
4. Compensation should be limited to death and major injury only, leaving medical personnel still liable for minor injuries. This will help doctors and nurses maintain their level of discipline, responsibility and care quality. (Draft Article 28)
5. In principle, compensation should be settled and paid within two months. If necessary, the process may be extended for two more months at maximum. (Draft Article 30)
6. If the injury is found to have resulted from intentional or negligent conduct on the part of the medical personnel, the government may ask the hospital or personnel to reimburse the compensation fund for monies already paid. (Draft Article 33)
7. Compensation for foreigners should be paid according to the principle of reciprocity. That is, a person not covered under the National Health Insurance program may apply for medical indemnity if his/her country accords the same treatment to ROC citizens. (Draft Article 40)