Legal analysis: apply for compensation for medical malpractice, shall take into account the following factors, to determine the amount of specific compensation: medical malpractice level; medical negligence in the consequences of medical malpractice damage to the degree of responsibility; medical malpractice damage to the consequences of the patient's pre-existing medical condition and the relationship between the damage.
Legal basis: "Regulations on the Treatment of Medical Accidents," Article 49 of the medical malpractice compensation, shall take into account the following factors, to determine the amount of specific compensation:
(a) the grade of medical malpractice;
(b) the degree of responsibility for the consequences of medical malpractice damages;
(c) the consequences of medical malpractice damages and the patient's pre-existing condition of the disease. (c) the relationship between the consequences of medical malpractice and the patient's pre-existing disease condition.
If it is not a medical malpractice, the medical institution shall not be liable for compensation.
Article 50 Compensation for medical malpractice 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 malpractice to the patient shall be calculated and paid on the basis of the evidence, but the medical expenses for the original disease shall not be included. After the conclusion of the case does require continued treatment, in accordance with the basic medical expenses paid.
(2) lost wages: the patient has a fixed income, in accordance with the fixed income of the person due to loss of work to reduce the calculation of income higher than three times the average annual wage of the employee on the ground of the medical malpractice, according to three times the calculation; no fixed income, according to the medical malpractice occurred on the ground of the average annual wage of the employee calculation.
(3) Hospitalized meal allowance: calculated in accordance with the standard of meal allowance for the general staff of the state organs in the place where the medical malpractice occurred.
(4) accompanying costs: if the patient needs to be accompanied during hospitalization, it is calculated according to the average annual salary of the employee in the year where the medical incident occurred.
(v) Disability living allowance: according to the grade of disability, calculated in accordance with the average annual cost of living of the residents of the place where the medical malpractice occurred, and the maximum compensation is 30 years from the month of determination of disability; however, for those who are 60 years of age or older, it shall not be more than 15 years; for those who are 70 years of age or older, it shall not be more than 5 years.
(vi) Disability appliances: 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 standard of funeral expenses subsidy stipulated by the place where the medical incident occurred.
(viii) Dependents' living expenses: to the extent of the deceased's life or the disabled person before the loss of working capacity to actually support and unable to work, in accordance with the minimum standard of subsistence guarantee for residents of the place of their domicile or residence. For those who are under 16 years of age, they shall be supported until they reach 16 years of age. For 16 years of age but incapable of labor, support 20 years; however, 60 years of age or older, no more than 15 years; 70 years of age or older, no more than 5 years.
(ix) Transportation expenses: calculated according to the actual necessary transportation costs of the patient, and payable by voucher.
(j) Accommodation expenses: calculated according to 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 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. Caused the death of the patient, compensation for up to six years; caused the patient's disability, compensation for up to three years.
Article 51 The transportation, lost labor and accommodation expenses required for the close relatives of the patient participating in the medical malpractice shall be calculated with reference to the relevant provisions of Article 50 of these Regulations, and the number of persons for whom the expenses are calculated shall not exceed two.
Where a medical malpractice results in the death of a patient, the transportation, work-loss and accommodation expenses required by the spouse and immediate family members of the patient participating in the funeral activities shall be calculated with reference to the relevant provisions of Article 50 of these Regulations, and the number of persons involved in the calculation of the expenses shall not exceed two.
Article 52 The compensation costs for medical malpractice shall be settled in one lump sum and paid by the medical institution which bears the responsibility for the medical malpractice.