Since 1999, Shanghai set up four expert committees successively on mental diseases, physical injury, wording authentication, and judicial account verification. These four committee are composed of 144 experts and responsible for reviewing an expertise in Shanghai’s disputed authentication cases and initial authentication for some of gross, difficult and foreign-elements-involved cases under the organization of the Municipal Judicial Expertise Center. Up to the present, the accumulated authentication conclusions have been over 620. Those conclusions are generally adopted by the case-handling units and accepted by most of the party concerned. They call those conclusions as“particular paper giving the decisive word”. The review of expertise by the expert committees also promotes the quality of the initial authentication by other authentication organizations. The conclusion changing rate of review of expertise vs. original expert’s conclusion declines to 25% from 45% in the past.

Facing Authentication

Making every effort to be just, scientific and accurate

In recent years, disputes between hospitals and patients are focus in the society.

At the beginning of 2002, Medical Malpractice Disposal Rules promulgated by the State Council clearly defines the medial malpractice. However, the diagnosis and treatment acts by some hospitals are sometimes not medical malpractice but have faults in their subjectivity, and such faults cause actual damages to the patients objectively. Accordingly, those hospitals shall assume the liabilities for tort subject to China’s civil law. Many authentications to medial malpractice only give their conclusions on the issue whether there are medial malpractices but fail to define whether the hospitals have faults or not and whether there are causal relations between faults and damage consequences. As a matter of fact, either hospitals and patients hold their evidence, making courts hard to give their judgment and the medial disputes hard to be solved in due course of time.

Since April of 2002, the municipal Physical Injury Judicial Expertise Committee is entrusted by the court to conduct judicial expertise to medial disputes. That expert committee has made their authentications to 11 medical disputes up to now by virtue of the technical advantages of clinic and legal medical experts. The experts’authoritative opinions are accepted as the solid evidence in solving disputes through both litigants’mediation and judgment by court in accordance with law and confirmed by all aspects concerned.

A Ms Yu challenged the conclusion by the municipal Judicial Expertise Experts Committee by saying that“I request complete nursing because the hospital failed to treat my leg. why do experts say that the partial nursing is adequate?”. According to the request that the authentication experts shall appear in court for cross examination by Ms Yu, three experts of the municipal Physical Injury Judicial Expertise Committee on radiation, orthopaedics and medical jurisprudence appeared in the expert witness bench of the Intermediate People’s Court of Jing’an District. In court, those experts were cross examined by attorneys of both parties and made proper answers to every questions with explanation of the profound basis of expertise conclusion in a simple way. at last, Ms Yu were convinced that the expertise is just, scientific and accurate.

According to sources, the municipal Judicial Expertise Center puts forward a series of new measures recently in order to guarantee the publicity and just of the judicial expertise activities in the procedures. 1. to produce Authentication Rules for Judicial Expertise Experts. It is undertaken in writing by the experts before the authentication that they will not make contact with party concerned and interested in private; they do not participate the initial authentication and give the expertise consultation with regard to the very case; and there are interest which may affect the expertise conclusion between them and the party concerned. 2. to inform in writing the person authenticated of his rights to challenge any expert witness before authentication. And 3. in case of dispute about the authenticity of the materials to be authenticated before authentication, both parties concerned shall check and verify the materials in advance; in case of medial disputes, it should be scheduled that both parties shall be present in the hearing. At the same time, any and all expertise conclusions shall bear the genuine signatures of the expert witnesses, otherwise the expertise report shall be void.

A glimpse of case

Whether does the hospital have the fault?

A Mr Xu went to hospital for cholecystectomy because of chronic cholecystitis and cholecystolithiasis. At the very next day of operation, his right diaphragm was elevated and the abdominal cavity conduction volume is only 2 ml. The hospital paid no attention to his situation. Later Mr Xu passed away due to serious infection of abdominal cavity. The Xu’s family requested medical malpractice authentication but the conclusion was“not the medical malpractice”. The Xu’s family dissented from such conclusion and brought the dispute to court. The court entrusted this case to some judicial expertise institution and its amphibolous conclusion was that“the fact that the hospital having no fault completely cannot be excluded in the operation and post-operation treating process”, which made the judge hard to give his judgment over this case.

Later this case was presented to the municipal Judicial Expertise Experts Committee. 7 clinic and legal medical experts looked up the complete medical record carefully and gave out their expertise conclusion that the hospital failed to detect the abdominal cavity infection in due course of time and to treat such infection in due course of time, which led to the death of Mr Xu. The fact of case was clear that the hospital had fault in medical treatment and there were de facto causal relation between such fault and the death of Mr Xu.

Who shall be responsible for abortion?

At the beginning of 2003, Ms Dong Hui had her new-bought villa decorated. Several months later, she found there were defects in decoration quality when she returned to her villa in Shanghai and accordingly refused to pay the remaining part of the decoration expenses equal to several thousands yuan. One day afterwards, the decoration workers came to her for collection of the outstanding payment. In their disputes, those decoration workers pushed over Ms Dong. When disputes disposal in the police station, she said that she had been pregnant for more than 2 months and requested inspection. In inspection, the doctor suspected that she might have threatened abortion. One week later, Ms Dong found her fetus had stopped growing in her B ultrasonic inspection in the hospital and had to undergo the abortion uterine curettage. Ms Dong held that her abortion was due to push-over by the decoration workers and thus claimed to the public security organ to hold them for criminal liabilities.

The Municipal Judicial Expertise Center accepted this case. It was found by 7 department of obstetrics and gynecology, B ultrasonic and legal medical experts that Ms Dong ever received a B ultrasonic inspection 20 days before she was injured which indicated that there was a 3×4×4mm sized embryo amniotic fluid area where there were no embryo bud and heart blood vessel signs. Accordingly the experts held that her gravidity embryo this time was of dysplasia and there was no causal relation between her abortion and external effect.

Murder Is A Psycho?

In February 2003, there occurred a homicide in which a Mr Song slain his mother-in-law and chopped wounded his wife. Afterwards Song’s mother requested insanity judicial expertise to her son. The public security authority accepted the request and entrusted the expertise institution to conduct judicial expertise to Song’s mental status. The conclusion was that“Song suffered from schizophrenia and was in the state of disease when committed the crime. Accordingly he shall be found of no capacity for criminal responsibility”. The victim’s family refused to accept this conclusion and held that the expert witnesses had prejudice to this case. At the same time, around 100 neighbours jointly signed an appeal for justice.

The Municipal Judicial Expertise Center was responsible for reviewing the expertise of this case. 5 psychosis experts patiently hear the opinions of the victim’s family, probed the relevant situations from the neighbourhood, and conducted the psychiatric expertise to the said murderer. At last experts, upon the symptom that the person under authentication had persecutory delusion, parathymia, eerie and ridiculous thinking, ruled that the previous expertise conclusion was right and just.

Voices of Experts

It is urged to legislate locally.

Whether the expertise conclusion is right or not has direct relation with the judgment of the case trial and lawful rights and interests of the natural persons, corporate bodies and other organizations. However there are obvious defects in the set and operation of China’s judicial expertise institutions, such as the authentication institutions can be set up by themselves without lawful requirements, which will, of course, be doubted about their justice of the expertise conclusions by the litigants concerned.

Notwithstanding Shanghai has established the Municipal Judicial Expertise Working Committee, Judicial Expertise Center and Experts Committee, laws and local regulations specialized in judicial expertise are still urgently needed for the smooth operation of the judicial expertise, commented Deputy Director of Shanghai Municipal Bureau of Justice. It is urged that Shanghai shall accelerate her local legislation in judicial expertise. Several provinces in China have promulgated the local regulations with regard to judicial expertise, according to his introduction.