Supreme People's Court on the trial of medical compensation dispute cases on the application of law
Article 1
Because of the right to compensation for medical institutions that the medical behavior of the patient's life, health, body suffered undue damage, sued for compensation for economic loss and spiritual damage to the medical institutions, the people's court shall accept.
The "right to compensation" referred to in this article refers to the patient who receives medical services, the dependents of the patient who is obliged to support him according to law, and the close relatives of the deceased patient.
The "medical institutions" referred to in this article are those institutions and individual clinics that have obtained the License to Practice as Medical Institutions and provide medical services, including health offices and clinics set up in accordance with the policy of rural cooperative medical care.
Article 2
Medical compensation disputes include medical malpractice damage compensation cases and other medical compensation disputes arising from causes other than medical malpractice.
Other medical compensation dispute cases include:
(1) the consequences of personal injury to a patient caused by the fault of a medical act, but does not constitute medical malpractice;
(2) the consequences of personal injury to another person caused by an organization engaging in family planning technical services in the course of the family planning services, but does not constitute a medical malpractice;
(3) the consequences of personal injury to another person caused by the use of drugs, medical equipment, medical equipment, medical equipment, medical services and other medical services by a medical organization. Drugs, medical equipment, medical devices have quality defects caused by the consequences of personal injury to patients;
(d) the consequences of personal injury to patients due to blood transfusion of infected viruses;
(e) other violations of health care laws and regulations, rules and regulations, and diagnosis, treatment and care norms, routines of the behavior of the patient caused by the consequences of personal injury. ), although the license to practice medical institutions, but does not have legal personality, the establishment of the unit as the defendant;
(C) the establishment of the law does not have legal personality of individual, private clinics, to the medical institution license or medical practitioner qualification certificate on the registration of the unit or individual as the defendant;
(D) rural villagers' committees set up the village health department (office) medical dispute In the case of a medical dispute, the collective organization as the defendant; the villagers' committee of the collective nature of the village health room (office) contracted to an individual with a physician's license to practice, the collective organization and the individual as the **** with the defendant.
Article 4
The patient receives treatment in different medical institutions, but the right to compensation for the patient did not sue all the medical institutions so as to affect the trial of the case, the people's court shall inform the right to compensation for the prosecution of all medical institutions; the people's court may also be ex officio additional compensation for the right to sue the other medical institutions as a defendant to participate in the litigation.
Already as a defendant of the medical institutions to the people's court to apply for additional medical institutions as *** with the defendant, after examination of the application is justified, the people's court shall notify in writing the additional medical institutions to participate in the litigation.
Article 5
In the course of litigation in a medical compensation dispute case, the people's court shall advise the medical institution to file a counterclaim for repayment of outstanding medical fees as a counterclaim, the people's court shall advise the institution to file a separate lawsuit in accordance with the dispute over the medical service contract.
Article 6
The provisions of Article 136 of the General Principles of Civil Law shall apply to disputes over tort damages arising from medical acts. Disputes arising from the claimant's right to compensation for the medical institution's liability for breach of contract shall be governed by the provisions of Article 135 of the General Principles of the Civil Law.
The statute of limitations period for medical compensation disputes starts from the date of the damage if the damage is obvious; if the damage was not detected at that time, and the consequences of the damage are later diagnosed as caused by the medical act after examination, the period starts from the date of the diagnosis of the consequences of the damage.
Article 7
The person entitled to compensation shall bear the burden of proof in respect of the following matters:
(1) the existence of a medical relationship between the patient and the medical institution;
(2) the fact of the damage;
(3) the actual loss and the scope of the loss.
Article 8
The medical institution shall bear the burden of proof on the following matters:
(1) the medical act is not at fault;
(2) there is no causal relationship between the medical act and the consequences of the damage;
(3) the medical act is not the sole cause of the consequences of the damage.
Article 9
In the litigation, the people's court shall grant permission to the person entitled to compensation to request a copy or reproduction of the medical record information as stipulated in Articles 10 and 16 of the Regulations on the Handling of Medical Accidents.
Another opinion: in litigation, the people's court shall seal and unseal the subjective medical record information stipulated in Article 16 of the Regulations on the Treatment of Medical Accidents in the presence of both the doctor and the patient.
Article 10
Where a medical institution refuses to provide medical record information kept by it, or falsifies, conceals or destroys medical record information sufficient to affect the trial of the case, the medical institution is presumed to be at fault.
Medical institutions altered or violated the provisions of the medical record information, resulting in the case of disputed facts can not be identified through the identification of the conclusion, shall bear the legal consequences of the failure to prove.
Article 11
Where the person entitled to compensation refuses to provide the outpatient information kept by him or seizes or steals the medical records kept by the medical institution and then tampers with or destroys them, or refuses to return them, thus making it difficult for the medical institution to prove the case, the person entitled to compensation shall bear the burden of proving that the medical institution is at fault in its medical activities.
After disputing the cause of death of a patient in the course of treatment, because the patient's family refuses or delays the autopsy, exceeding the prescribed time, affecting the determination of the cause of death, the medical institution does not bear the burden of proof on the existence of a causal relationship between the medical behavior and the consequences of the patient's death.
Article 12
The people's court shall adopt the following evidence submitted by the parties concerned in determining whether the medical institution is at fault:
(1) medical and health care laws, administrative regulations, departmental rules, and other normative documents to determine the medical and health care system;
(2) the health administrative department at or above the provincial level formulates or commissions the academic group to Prepared by the diagnosis and treatment of nursing norms.
Article 13
Where a party submits a medical textbook or medical literature containing medical norms, methods, or opinions, and the opposing party fails to provide evidence sufficient to refute such norms or methods, the people's court shall adopt such norms or methods in determining whether the medical institution is at fault.
Article 14
In the course of litigation, the parties apply for technical appraisal of medical accidents, or the technical appraisal of medical accidents have objections to the conclusions of the technical appraisal of medical accidents and request for technical appraisal of medical accidents, the people's court deems necessary, it shall entrust the medical association to organize the appraisal.
Article 15
The parties apply for appraisal of whether the medical behavior is faulty, whether there is a causal relationship between the medical fault behavior and the consequences of personal injury, the degree of responsibility for the medical fault behavior in the consequences of medical injury and disability grade, the cost of treating the patient's pre-existing diseases, nutrition and care costs, the people's court deems it necessary, it may entrust the judicial appraisal institution to organization to conduct judicial appraisal.
Article 16
The people's court shall inform the party concerned that the time limit for applying for reappraisal of the technical appraisal or judicial appraisal of medical accidents shall be 30 days from the date of receipt of the appraisal.
The people's court shall not accept a party's late application for reappraisal.
Article 17
The people's court shall, before commissioning an appraisal, organize both parties to confirm the authenticity of the medical records submitted.
The authenticity of the medical record information is difficult to judge, the people's court shall inform the parties to apply for documentary evidence test. Documentary evidence test shall be completed before the technical appraisal of medical accidents or medical fault identification.
Article 18
Technical appraisal of medical accidents and judicial appraisal shall be presented in court, by the parties to the questioning.
On application of the parties, the people's court shall require the appraiser to appear in court to be questioned by the parties.
Appraisers are unable to appear in court for special reasons, may reply in writing to the questioning of the parties.
Article 19
The people's court entrusts the medical association to organize the appraisal, the appraisal fee for the first technical appraisal of medical accidents shall be paid in advance by the medical institution. Upon identification, belonging to medical malpractice, identification costs paid by the medical institution; does not belong to medical malpractice, identification costs paid by the compensation rights.
Judicial appraisal of the appraisal costs by the party making the application in advance, and the people's court to determine the appraisal costs based on the conclusion of the appraisal.
Reasonable expenses incurred by the appraiser in court for questioning shall be paid in advance by the party applying for the appraiser's appearance and borne by the losing party.
The people's court ex officio commissioned an appraisal, the appraisal costs and appraisers appear in court to accept the questioning of the reasonable expenses incurred by the people's court in advance, and by the losing party.
Article 20
The people's court, in determining whether a medical institution is at fault and the extent of fault, shall take into account the prevailing level of medical care, the grade of the medical institution, and whether there is an emergency situation in terms of time and matter in the medical treatment, and other factors.
Article 21
Medical behavior in violation of medical and health management laws, administrative regulations, departmental rules and regulations and diagnosis, treatment and care norms and routines, constituting a medical malpractice, the medical institution shall, according to the degree of responsibility, bear the responsibility for compensation.
Not constitute a medical malpractice, but the trial can be determined that the medical institution has civil fault, in line with the elements of civil tort, the medical institution shall bear the corresponding liability.
Article 22
In the absence of the need for emergency rescue and other extraordinary circumstances, the medical institution without the consent of the affected party to change the main principles of treatment or major treatment programs, resulting in damages, shall bear the corresponding liability.
Article 23
When a medical institution performs an operation, special examination or special treatment, it fails to fulfill the necessary obligations in accordance with the provisions of Article 33 of the Regulations on the Administration of Medical Institutions, resulting in the right to compensation not being able to exercise the right of choice of medical treatment and thus causing damage or increasing economic burden, it shall bear the corresponding liability for compensation.
Article 24
In determining the liability for compensation for medical malpractice, the people's court shall refer to the provisions of Articles 49(1), 50, 51 and 52 of the Regulations on the Handling of Medical Malpractice.
Appraised not constitute medical malpractice but the medical institution is at fault, in determining the civil liability of the medical institution, the people's court shall also refer to the "Regulations on the Treatment of Medical Malpractice" for the above provisions.
Another opinion: the medical institution is at fault but does not constitute medical malpractice of other medical compensation disputes, the people's court shall calculate the total amount of compensation according to the General Principles of Civil Law and the relevant judicial interpretations of the compensation items and standards, combined with the proportion of responsibility borne by the medical institution, to determine the specific amount of compensation.
Article 25
Where several medical institutions are the defendants, the medical institution at fault shall bear the compensation responsibility. Medical institutions are at fault, such as the causal relationship can be distinguished, shall be in accordance with the degree of causality and the size of the fault of the liability; causality can not be distinguished, shall be jointly and severally liable.
Article 26
The people's court shall make a decision on the compensation for medical damages in the form of a one-time settlement.
If the patient needs follow-up treatment, the people's court may adjudicate such costs together with other damages after the judicial appraisal organization has confirmed the relevant costs of follow-up treatment.
If the patient claims the cost of follow-up treatment and the medical institution objects, the judicial appraisal organization may confirm the cost.
Article 27
After the occurrence of medical damage, the right to compensation and the medical institution after consultation or mediation under the auspices of the administrative department of health to reach a mediation agreement, one party repudiates the request for re-addressing, generally do not support. However, the mediation agreement in accordance with the provisions of the law, except for invalid or revocable circumstances.
Article 28
The people's court shall determine the liability of the medical institution or the producer or seller of drugs, medical equipment or medical devices according to the Product Quality Law and relevant judicial interpretations, where the quality of the drugs, medical equipment or medical devices is defective and has caused damage to the patient.
The people's court shall support the medical institution to recover compensation from the producer or seller of drugs, medical equipment or medical devices according to the law after the medical institution has assumed the responsibility for compensation.
Article 29
If, in the course of medical treatment, damage is caused to a patient's health by a blood station violating its legal obligation to provide blood that does not conform to the standards prescribed by the state, or by a medical staff member of a medical institution violating his legal obligation to use blood that does not conform to the standards prescribed by the state for the patient, the medical institution or blood station shall bear the liability for compensation. If both the blood station and the medical institution are at fault, they shall be jointly and severally liable for compensation.
Blood stations and medical institutions that can prove that they have fulfilled their legal obligations and are not at fault for the damage to the patient's health shall not be held liable for compensation.
If a patient is infected with a virus due to the use of a blood product, the producer of the blood product shall bear the compensation responsibility stipulated in the Product Quality Law.
Another opinion: if a patient is infected with a virus due to blood transfusion, and both the blood station and the medical institution can prove that they have fulfilled their legal obligations, the people's court shall re-test the retained blood samples. If the re-test complies with the national standard, the blood station and medical institution shall not bear civil liability.
If the re-test does not meet the national standard or if the re-test cannot be conducted, the people's court may, according to the actual situation, decide that the blood station and the patient share the civil liability. If the blood transfusion quality insurance has been implemented and the patient can receive the insurance money, the blood station shall not bear the civil liability.
Article 30
If an individual fails to obtain the qualification for practicing medicine or a unit fails to obtain the license for practicing medicine and commits an illegal act of practicing medicine, which results in personal injury to the patient, he/she shall bear the liability as stipulated in the General Principles of the Civil Law and the relevant judicial interpretations.
Illegal practice of medicine in the name of medical institutions to implement medical acts, medical institutions are at fault, shall bear joint and several liability.
Article 31
Medical institutions provide medical services under one of the following circumstances, infringing on the legitimate rights and interests of patients, the patients may request the return of paid medical fees, compensation for losses, and may request the medical institution to bear the liability for compensation of not more than double the paid medical fees:
(1) false propaganda and promises of efficacy to the patients in the case of obvious lack of medical conditions;
(2) the medical institution may request the patients to return the medical fees, compensate for the loss, and may request the medical institution to bear the liability for compensation of not more than twice the paid medical fees.
(ii) provide patients with drugs or medical equipment, counterfeit and shoddy goods;
(iii) not to provide the appropriate services but charge fees.
Article 32
Where there is no fault in a medical act or no causal relationship between the medical act and the result of the damage claimed by the patient, the medical institution shall not bear civil liability.
Article 33
Whether a medical institution has fulfilled its obligation to inform the patient of his condition, medical measures, medical risks, etc., and whether the fulfillment of the obligation to inform is appropriate, the people's court shall make a comprehensive determination in accordance with the patient's condition, state of mind, mental capacity and other factors.
The statements made by a medical institution to comfort or encourage a patient that do not correspond to the actual condition of the patient shall not be considered as infringing on the patient's right to information.
Article 34
In the case of experimental clinical medical treatment or other risky medical acts performed with the consent of the patient or his/her family members, and where the medical institution is not at fault, the responsibility for the risk shall be borne by the patient and his/her relatives.
Article 35
The standard of compensation in cases of medical compensation disputes shall be determined by the people's court in accordance with the statistical data published by the government statistical department on the urban residents concerned in each province, autonomous region and municipality directly under the central government in the preceding year.