Medical damage may constitute medical malpractice, may also constitute a tort, which is based on the specific circumstances, but are involved in compensation, so it is easy to produce disputes.
A, what are the considerations in the medical damage dispute
1, the most important first step is to the hospital to propose to the case material and the scene of physical sealed. To put it bluntly, it is to preserve and fix the evidence, in order to prepare for the appraisal afterward. At the same time in the sealing of the case, you can also request a copy of the case materials, such as outpatient medical records, hospital records, temperature, medical orders, laboratory (test reports), medical imaging information, special examination consent, surgical consent, surgery and anesthesia record sheets, pathological information, nursing records and other objective case materials are permitted to copy, but for the like of the death of the case discussion records, difficult case discussion records, But it is not allowed to copy the subjective case materials such as the death case discussion record, difficult case discussion record, the superior physician's examination record, the consultation opinion, and the disease record.
2, sealed case materials, the next step is whether the medical malpractice is medical malpractice technical appraisal, this time you can and the hospital together *** with the commission of the local medical association of medical malpractice technical appraisal, if the hospital and the hospital is more deadlocked, it is to go to the hospital where the people's government of the county level health administrative department to apply for handling of medical malpractice disputes, by the administrative department of health will be the relevant materials transferred to the medical association organization appraisal. The health administrative department will transfer the relevant materials to the medical association for appraisal. It should be noted that the application for the administrative department of health to deal with medical malpractice disputes and through the court can only choose one, if you choose to deal with the court proceedings, the administrative department of health will not be given to deal with.
3, the medical association will be identified after the issuance of medical malpractice technical appraisal, the appraisal of the contents of the main (a) the basic situation of the two parties and requirements; (b) the parties to submit the material and the medical association responsible for organizing the work of medical malpractice technical appraisal of the investigative material; (c) the appraisal process of the statement; (d) whether the medical acts in violation of health care management laws, administrative regulations, (d) whether the medical behavior violates the medical and health management laws, administrative regulations, departmental rules and diagnosis and treatment norms and routines; (e) whether there is a causal relationship between the medical negligence and the consequences of personal injury; (f) the degree of responsibility for the consequences of medical malpractice in the medical malpractice; (g) the grade of the medical malpractice; (h) the medical care of medical malpractice patients medical advice. If there are objections to the appraisal, you can also apply for re-appraisal.
4, if the appraisal belongs to medical malpractice, civil liability and compensation issues, you can negotiate with the hospital, consultation is not possible, you can apply for mediation to the health administrative department, so that the health administrative department in the middle of the mediation, if the mediation is not or do not want to mediate with the health care, then you can go directly to the court to file a lawsuit.
5, if the appraisal does not belong to the medical malpractice, also does not mean that the hospital is not responsible, if the hospital has medical negligence, can still sue the hospital for damages.
6, calculate the amount of civil compensation for medical malpractice in the end is based on "medical malpractice regulations" or "tort liability law" and "the supreme people's court on the trial of personal injury compensation cases on the application of the law a number of interpretations" it. On this issue, the Jiangsu Provincial Higher People's Court Civil Trial Division 1 issued guidelines for the trial of tort damages cases, damages arising from medical damage, the scope of the compensation program in accordance with the provisions of the Tort Liability Law to determine the standard of compensation for the relevant items, in accordance with the "Supreme People's Court on the trial of personal injury compensation cases on the application of certain issues of the Interpretation of the law" in the relevant provisions of the relevant provisions of the trial of cases of personal injury compensation, other provinces, such as Beijing, Zhejiang, also have similar provisions. provinces such as Beijing and Zhejiang have similar provisions.
7, medical damage disputes, before the implementation of the tort liability law, for the implementation of the tort lawsuit caused by medical behavior reversal of the burden of proof, by the medical institution on the medical behavior and the results of the damage between the absence of causation and the absence of reliance on the fault of the burden of proof, but after the implementation of the tort law, does not apply to the reversal of the burden of proof, but rather to adapt to the general burden of proof, i.e., the victim of the existence of medical Fault, medical behavior and the consequences of damage to the causal relationship between the burden of proof.
8, in the medical damage disputes, generally need to apply for the court to identify the content of medical behavior is at fault, medical fault behavior and the consequences of the damage whether there is a causal relationship between the medical fault behavior and the consequences of damage, medical fault behavior in the consequences of the medical damage in the cause of the magnitude of the force and the level of disability. Because of the drugs, medical equipment, medical devices, whether there are quality defects, the need for identification, you can apply for medical use (product) quality appraisal.
Second, the medical damage dispute is presumed to be at fault in which cases
Medical has one of the following circumstances:
1, violation of laws, administrative rules, regulations and other relevant diagnostic and treatment norms;
2, concealment or refusal to provide the dispute related to the medical records;
3, forgery, tampering with or destroying the medical records. information.
Legal basis:
Article 58 of the Tort Liability Law: "If the patient has damage, it is presumed that the medical institution is at fault due to one of the following circumstances: (1) violation of the laws, administrative rules, regulations, and other provisions relating to diagnostic and treatment norms; (2) concealment of, or refusal to provide, the medical record information relating to the dispute; (3) forgery, alteration or destroy medical record information.
Legal Objective:Article 188 of the People's Republic of China and the National Code of the People's Republic of China stipulates that the statute of limitations for petitioning the People's Court for the protection of civil rights shall be three years. Where the law provides otherwise, it shall do so in accordance with its provisions. The period of limitation shall be calculated from the date when the right holder knows or should have known that the right has been jeopardized and the obligor. Where the law provides otherwise, it shall do so in accordance with its provisions. However, the people's court shall not protect the right from the date of damage for more than twenty years, and the people's court may decide to extend the period on the basis of the application of the right holder if there are special circumstances.