Typical medical malpractice cases and analysis! (Requirements for specific cases and points, preferably today's hot medical disputes)

Child with cerebral palsy v. Shanghai hospital medical malpractice compensation case Brief description of the case Plaintiff Zhang's mother was admitted to the hospital in an emergency on October 4, 2006 (twins awaiting delivery), and was placed in the maternity ward at 3:45 a.m. after the doctor told her that the ultrasound showed that the fetus's fetal heartbeat and fetal movement were not abnormal. However, the plaintiff's membranes ruptured prematurely, and the amniotic fluid flowed out for more than six hours, and the defendant (the hospital) did not take any specific treatment or examination measures. The plaintiff was born in the same day at 9:30 am, the doctor told, the plaintiff severe hypoxia, in the pediatric ward in the warming box of the rescue has changed the hospital, but in 2008 the plaintiff found cerebral palsy, the plaintiff's family in February 2009 will be in the defendant's case only after the defendant, the plaintiff's condition is caused by the defendant. 2009 March plaintiff will be the defendant of Shanghai hospital v. Shanghai yangpu district people's court, requesting that court Order the defendant medical malpractice liability. Case analysis as the plaintiff's attorney, since accepting the commission, we carefully listen to the party's statement, investigation and evidence collection, the main legal facts and evidence of the case, from the perspective of professional knowledge to analyze, and make the corresponding program, the main controversy in the case: a, whether the statute of limitations The defendant side of the case has exceeded the statute of limitations, we believe that the defendant of this legal concepts and applications There is a misunderstanding of the concept and application of the law, according to the "general principles of civil law" and the "opinions" and other relevant laws, the period of limitation is calculated from the time of knowing or should know that the rights have been infringed upon, i.e., it should be started from the time when the right holder can exercise the request. Article 168 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of Civil Law stipulates. The limitation period for personal injury compensation shall be calculated from the date of injury if the injury is obvious; if the injury is not found at that time, and it is confirmed by examination and diagnosis and can be proved that it is caused by the infringement, the limitation period shall be calculated from the date of diagnosis of the injury. Therefore, the statute of limitations in this case should be calculated from the time when the case was transferred to the defendant in February 2009 and the condition determined was caused by the defendant. Second, whether the defendant has medical fault The defendant has been in denial as to whether the plaintiff's birth process constituted medical malpractice. In the trial process, we apply to the court commissioned judicial appraisal, Shanghai yangpu district people's court commissioned by the Shanghai hongkou district medical association on the defendant of the plaintiff's medical behavior is a violation of medical and health care management laws, administrative regulations, departmental regulations and diagnosis and treatment of nursing norms and routines; its medical behavior and the status quo has no causal relationship and the case constitutes a medical malpractice, the defendant's diagnosis and treatment of the plaintiff whether there is fault for Appraisal, Shanghai hongkou district medical association appraisal conclusion for not constitute medical malpractice. In the face of such a conclusion, is undoubtedly a painful blow. To obtain compensation in this case, this appraisal is the key, the lawyer and the plaintiff are not convinced that the appraisal. We re-apply for appraisal, Shanghai Yangpu district people's court accepted the application, and commissioned by the Shanghai medical association on the defendant on the plaintiff's medical behavior is a violation of medical and health care laws, administrative regulations, departmental regulations and diagnosis and treatment of norms and routines; its medical behavior and the status quo has a causal relationship with the case whether it constitutes a medical malpractice, the defendant's diagnosis of the plaintiff's fault for the appraisal, the appraisal concluded that The plaintiff and the defendant's medical dispute constitutes medical malpractice. According to the "medical malpractice regulations" article 2, article 4, "medical malpractice classification standard" (for trial implementation), "interim measures for technical appraisal of medical malpractice" article 36, this case constitutes the second class b medical malpractice, the medical party bear the main responsibility. Conclusion of the judgment, the plaintiff told the defendant Shanghai hospital medical accident damage compensation dispute, Yangpu district people's court found that the facts of the case is clear, the evidence is sufficient to support all of our plaintiff's lawsuit, the judgment is as follows: first, the defendant shall compensate the plaintiff for the medical expenses of rmb 5090.40 within ten days from the date of entry into force of the judgment; second, the defendant shall compensate the plaintiff for the hospitalized meal subsidy of rmb 280 within ten days from the date of entry into force of the judgment; third, the defendant shall compensate the plaintiff for the hospitalized meal The Defendant shall compensate the Plaintiff for the hospitalization meal allowance of RMB 280 Yuan within ten days from the date of entry into force of this judgment. The Defendant shall compensate the Plaintiff for transportation costs of RMB 210 within ten days from the date of entry into force of this judgment; vii. The Defendant shall compensate the Plaintiff for moral damages of RMB 24,441.48 within ten days from the date of entry into force of this judgment; viii. The Defendant shall compensate the Plaintiff for disability living allowance of RMB 244,414.80 within ten days from the date of entry into force of this judgment; ix. The Defendant shall compensate the Plaintiff for attorney's fees of RMB 3,500 within ten days from the date of entry into force of this judgment. IX. The Defendant shall compensate the Plaintiff's attorney's fee within ten days from the date of entry into force of this judgment. Legal basis: Article 50 of the Regulations on the Treatment of Medical Accidents. Compensation for medical accidents shall be calculated in accordance with the following items and standards: (1) medical expenses: medical expenses incurred in treating the personal damage caused by the medical accident to the patient shall be calculated and paid on the basis of the evidence, but excluding the medical expenses of the original disease. If it is really necessary to continue treatment after the case is closed, it shall be paid in accordance with the basic medical expenses. (ii) Lost wages: if the patient has a fixed income, it shall be calculated in accordance with his/her fixed income reduced by lost wages, and if the income is higher than three times the average annual wage of the employees in the previous year on the site of the medical malpractice, it shall be calculated in accordance with three times; if the patient does not have a fixed income, it shall be calculated in accordance with the average annual wage of the employees in the previous year on the site of the medical malpractice. (c) Hospitalization meal allowance: calculated in accordance with the standard of business trip meal allowance for the general staff of state organs in the place where the medical malpractice occurred. (d) Accompanying fee: if the patient needs to be accompanied by someone during hospitalization, the fee shall be calculated in accordance with the average annual salary of the employee in the year in which the medical malpractice occurred. (v) Disability living allowance: according to the disability grade, calculated in accordance with the average annual cost of living of residents in the place where the medical malpractice occurred, with a maximum compensation of 30 years from the month of determination of the disability; however, not more than 15 years for those over 60 years of age and not more than 5 years for those over 70 years of age. (vi) Disability appliances cost: if the disability requires the allocation of compensatory functional appliances, the cost is calculated according to the cost of universal appliances with the certificate of the medical institution. (vii) Funeral expenses: calculated in accordance with the funeral expense subsidy standard stipulated in the place where the medical incident occurred. (viii) Living expenses for dependents: limited to those who actually supported the deceased during his/her lifetime or before the disabled person became incapable of working, and calculated in accordance with the minimum standard of subsistence guarantee for residents of his/her domicile or place of residence. For those who are under 16 years of age, they shall be supported until they reach the age of 16. For those who have reached the age of 16 but are incapable of labor, they shall be supported for 20 years; however, for those who are over 60 years of age, no more than 15 years; and for those who are over 70 years of age, no more than 5 years. (ix) Transportation fee: calculated according to the actual necessary transportation cost of the patient, and paid with proof. (x) Accommodation expenses: calculated in accordance with the standard of business trip accommodation allowance for general staff of state organs in the place where the medical malpractice occurs, and paid on the basis of supporting documents. (xi) Compensation for moral damage: calculated in accordance with the average annual cost of living of residents in the place where the medical malpractice occurred. The maximum number of years of compensation shall not exceed 6 years in the case of causing the death of the patient, and 3 years in the case of causing the disability of the patient. Article 98 of the General Principles of the Civil Law of the People's Republic of China enjoys the right to life and health.　Article 106, paragraph 2 Citizens and legal persons who, through fault, infringe upon the property of the state or the collective, or upon the property or person of others, shall bear civil liability. Article 119 If the infringement of a citizen's body causes injury, compensation shall be paid for medical expenses, reduced income due to missed work, and living allowances for the disabled; if it causes death, and shall pay the funeral expenses, and the necessary living expenses of the people supported by the deceased during his lifetime.