Based on the degree of damage caused to the patient's person, medical malpractice is divided into four levels:
First-degree medical malpractice: causing the patient's death and severe disability;
Second-degree medical malpractice: causing the patient's moderate disability and organ and tissue damage leading to severe functional impairment;
Third-degree medical malpractice: causing the patient's mild disability and organ and tissue damage leading to general
Medical malpractice of the fourth degree: other consequences that cause obvious physical damage to the patient.
The specific grading standards shall be formulated by the health administrative department of the State Council.
Chapter III Technical Identification of Medical Accidents
Article 20 The administrative department of health receives a report from a medical institution on major medical negligence or a request from the parties involved in a medical malpractice dispute to deal with the application of medical malpractice disputes, the need for technical appraisal of medical accidents shall be referred to the medical association responsible for medical malpractice appraisal of medical technology to organize the appraisal; the doctor and the patient to resolve the dispute by negotiation. Medical malpractice disputes, the need for medical malpractice technical appraisal, by both parties **** with the commission responsible for medical malpractice technical appraisal of the medical association organization appraisal.
Article 21 The local medical association at the municipal level and the county (city) under the direct jurisdiction of provinces, autonomous regions and municipalities directly under the jurisdiction of the local medical association is responsible for the organization of the first technical appraisal of medical accidents. Provinces, autonomous regions, municipalities directly under the central local medical association is responsible for organizing the re-identification work.
When necessary, the Chinese Medical Association can organize difficult, complex and in the country has a significant impact on the technical appraisal of medical malpractice disputes.
Article 22 of the parties to the first technical appraisal of medical accidents are not convinced of the conclusion, can be received within 15 days from the date of the first appraisal of the conclusion of the local health administrative department to the medical institution to submit an application for re-appraisal.
Article 23 The medical association responsible for organizing the technical appraisal of medical accidents shall establish a pool of experts.
The expert pool consists of health care professionals and technicians with the following conditions:
(1) good business quality and ethics in practice;
(2) employed in health care institutions or medical teaching, research institutions and serve as a senior technical position in the corresponding profession for more than three years.
Conforms to the conditions stipulated in paragraph (a) of the preceding paragraph and has the senior technical qualifications of forensic doctors can be hired into the expert pool.
The medical association responsible for organizing the technical appraisal of medical accidents in accordance with the provisions of these regulations to hire health care professionals and forensic doctors into the expert pool, may not be subject to the restrictions of the administrative region.
Article 24 The technical appraisal of medical accidents shall be conducted by the expert appraisal group organized by the medical association responsible for organizing the technical appraisal of medical accidents.
Experts of relevant specialties participating in the technical appraisal of medical malpractice shall be randomly selected from the expert pool by both the doctor and the patient under the auspices of the medical association. In special circumstances, the medical association in accordance with the needs of medical malpractice technical appraisal work, can be organized by doctors and patients in other medical associations to establish the expert database randomly selected experts in related professions to participate in the appraisal or letter of advice.
Medical and health care professionals and forensic doctors who meet the conditions set forth in Article 23 of these Regulations shall be obliged to be employed in the expert pool and to undertake the technical appraisal of medical accidents.
Article 25 The expert appraisal group for technical appraisal of medical accidents, the implementation of collegiality. Expert appraisal group for the number of singular, involving the main disciplines of experts generally shall not be less than one-half of the appraisal group; involving the cause of death, disability level appraisal, and shall be randomly selected from the expert pool of forensic doctors to participate in the expert appraisal group.
Article 26 of the expert appraisal group members of one of the following circumstances, shall be recused, the parties may also apply for its recusal orally or in writing:
(a) is a medical malpractice disputes or the parties to the close relatives;
(b) and medical malpractice disputes with an interest in the;
(c) and medical malpractice disputes parties (C) has other relations that may affect the impartial appraisal.
Article 27 The expert appraisal team shall, in accordance with the laws, administrative regulations, departmental rules and regulations on medical and health care management, as well as diagnosis and treatment norms and routines, utilize the principles of medical science and professional knowledge to independently carry out the technical appraisal of medical malpractice, identify and determine medical malpractice, and provide a medical basis for the handling of disputes over medical malpractice.
No unit or individual shall interfere with the work of medical malpractice technical appraisal, and shall not threaten, induce, abuse or assault the members of the expert appraisal team.
The expert appraisal team members shall not accept property or other benefits from both parties.
Article 28 The medical association responsible for organizing the technical appraisal of medical accidents shall, within five days from the date of acceptance of the technical appraisal of medical accidents, notify both parties to the dispute of medical accidents to submit the materials required for the technical appraisal of medical accidents.
The parties concerned shall submit the materials, written statements and defense concerning the technical appraisal of medical malpractice within 10 days from the date of receipt of the notification from the medical association. The materials submitted by the medical institution for technical appraisal of medical malpractice shall include the following:
(1) the original medical records of the hospitalized patients, records of the discussion of fatal cases, records of the discussion of difficult cases, opinions of the consultation, and the records of the room visits of the supervising physician;
(2) the hospital records of the hospitalized patients, the temperature slips, the doctor's order form, the laboratory report (test report), medical imaging and examination data, the consent for special examination, the medical records, the medical records of the hospitalized patients, and the medical records of the hospitalized patients. examination data, special examination consent, surgical consent, surgical and anesthesia record sheets, pathological data, nursing records and other original medical records;
(c) rescue of patients in critical condition, within the prescribed time to make up for the original medical records;
(d) sealed and retained transfusions, injections, and blood, medicines and other physical objects, or testing institutions qualified according to law on the test report made by these objects, physical objects. Articles, physical test reports;
(e) other materials related to the technical appraisal of medical accidents.
Outpatients and emergency patients who have medical records in medical institutions shall be provided with medical records by the medical institutions; those who do not have medical records in medical institutions shall be provided with medical records by the patients.
Doctors and patients should be submitted in accordance with the provisions of these regulations. Medical institutions without justifiable reasons not in accordance with the provisions of these regulations to truthfully provide the relevant materials, resulting in the technical appraisal of medical accidents can not be carried out, shall be liable.
Article 29 is responsible for the organization of medical malpractice technical appraisal of the medical association shall be received from the parties concerned to submit the technical appraisal of medical malpractice of the materials, written statements and defense within 45 days from the date of the organization of the appraisal and the issuance of medical malpractice technical appraisal.
The medical association responsible for organizing the technical appraisal of medical malpractice can be investigated and evidence collection from both parties.
Article 30 The expert appraisal team shall carefully examine the materials submitted by both parties, listen to the statements and defense of both parties and verify.
The parties shall, in accordance with the provisions of these Regulations, truthfully submit the materials required for the technical appraisal of medical accidents, and actively cooperate with the investigation. If either party fails to cooperate and affects the technical appraisal of the medical incident, the party who fails to cooperate shall be held responsible.
Article 31 The expert appraisal team shall, on the basis of clear facts and solid evidence, comprehensively analyze the patient's condition and individual differences, make a conclusion and produce a technical appraisal of medical malpractice. Appraisal conclusions by a majority of the expert appraisal group members. The appraisal process should be faithfully documented.
Medical malpractice technical appraisal shall include the following main contents:
(1) the basic situation of the parties and requirements;
(2) the parties to submit materials and responsible for the organization of medical malpractice technical appraisal of the medical association of the investigative material;
(3) the appraisal process of the description of the appraisal process;
(4) the medical behavior is not (v) whether there is a causal relationship between the medical negligent behavior and the consequences of personal injury;
(vi) the degree of responsibility of the medical negligent behavior in the consequences of medical malpractice;
(vii) the grade of the medical malpractice;
(viii) medical recommendations for the medical malpractice (ix) Medical recommendations for the patient's medical care.
Article 32 The methods for technical appraisal of medical accidents shall be formulated by the health administrative department of the State Council.
Article 33 One of the following circumstances is not medical malpractice:
(1) in an emergency to save the life of dying patients and take emergency medical measures resulting in adverse consequences;
(2) in medical activities due to the patient's condition is abnormal or the patient's special physical condition and the occurrence of medical accidents;
(3) under the existing medical science and technology conditions, the occurrence of unforeseeable medical problems. (C) in the existing medical science and technology conditions, the occurrence of unforeseen or can not be prevented adverse consequences;
(D) no fault blood transfusion infections resulting in adverse consequences;
(E) delayed diagnosis and treatment of the patient's reasons leading to adverse consequences;
(F) force majeure resulting in adverse consequences.
Article 34 The technical appraisal of medical malpractice can be charged for the appraisal fee. After identification, belongs to the medical incident, the identification costs paid by the medical institution; does not belong to the medical incident, the identification costs paid by the party that filed the application for medical malpractice. Appraisal fee standards by the provinces, autonomous regions, municipalities directly under the Central People's Government price department in conjunction with the same level of the financial sector, the health administration.
Chapter IV Administrative Treatment and Supervision of Medical Malpractice
Article 35 The administrative department of health shall, in accordance with the provisions of these regulations and relevant laws, administrative regulations and departmental rules, the occurrence of medical malpractice of medical institutions and medical personnel to make administrative treatment.
Article 36 The administrative department of health receives a report from a medical institution on major medical negligence, in addition to ordering the medical institution to take timely and necessary medical measures to prevent the expansion of the consequences of the damage, it shall organize an investigation to determine whether or not it is a medical malpractice; it shall be unable to determine whether or not it is a medical malpractice, it shall be in accordance with the provisions of the relevant provisions of these regulations shall be referred to the responsible for the medical malpractice technical identification of the work of the Medical association organization identification.
Article 37 The occurrence of medical malpractice disputes, the parties concerned to apply for the administrative department of health, shall submit a written application. The application shall contain the basic situation of the applicant, the relevant facts, specific requests and reasons.
The parties concerned may, within one year from the date they knew or should have known that their physical health had been harmed, apply to the administrative department of health to deal with the medical malpractice dispute.
Article 38 In the event of a medical malpractice dispute, where the parties concerned apply to the administrative department of health, the administrative department of health of the people's government at the county level where the medical institution is located shall accept the application. If the location of the medical institution is a municipality directly under the central government, the administrative department of health of the people's government of the district or county where the medical institution is located shall accept the application.
In any of the following cases, the administrative department of health of the people's government at the county level shall, within seven days from the date of receipt of the report of the medical institution or the party concerned filing the application for handling the dispute of the medical incident, refer it to the administrative department of health of the people's government of the next higher level for handling:
(1) death of the patient;
(2) a medical incident which may be of the second degree or above;
(3) The State Council administrative department of health and the people's governments of provinces, autonomous regions and municipalities directly under the Central People's Government of the health administrative department of other circumstances.
Article 39 The administrative department of health shall, within 10 days from the date of receipt of an application for handling a medical malpractice dispute, conduct an examination and make a decision as to whether or not to accept the application. In line with the provisions of these regulations, to be accepted, the need for technical appraisal of medical accidents, shall, within five days from the date of acceptance of the decision to submit the relevant materials to the medical association responsible for the technical appraisal of medical accidents organization appraisal and notify the applicant in writing; does not comply with the provisions of these regulations, is not admissible, it shall be notified to the applicant in writing and the reasons for it.
The parties to the first technical appraisal of medical accidents have objections to the conclusion, apply for reappraisal, the administrative department of health shall, within seven days from the date of receipt of the application by the province, autonomous region, municipality directly under the Central Government, the organization of the medical association for reappraisal.
Article 40 of the parties both to the administrative department of health to apply for the handling of medical disputes, and to the people's court litigation, the administrative department of health shall not be admissible; the administrative department of health has been admissible, it shall terminate the processing.
Article 41 The administrative department of health receives the medical association responsible for organizing the technical appraisal of medical accidents issued by the technical appraisal of medical accidents, shall participate in the appraisal of the qualifications of the personnel and professional categories, the appraisal process for review; if necessary, may organize an investigation, listen to the views of both parties to the dispute over medical accidents.
Article 42 The administrative department of health, after review, in line with the provisions of these regulations made by the technical appraisal of medical accidents, shall be used as a medical malpractice of medical institutions and medical personnel to make the administrative treatment as well as mediation of medical malpractice compensation based on; after review, found that the technical appraisal of medical accidents do not comply with the provisions of these regulations, shall require a re-appraisal.
Article 43 of the medical malpractice disputes by both parties to resolve their own negotiations, the medical institution shall, within seven days from the date of settlement of the negotiations to the local health administrative department to make a written report, accompanied by a letter of agreement.
Article 44 of the medical malpractice dispute by the people's court mediation or judgment, the medical institution shall receive the effective people's court mediation or judgment within 7 days from the date of the written report to the seat of the administrative department of health, and attached to the mediation or judgment.
Article 45 The health administrative department of the local people's government at or above the county level shall, in accordance with the provisions of the local medical accidents as well as the administrative treatment of medical institutions and medical personnel involved in medical accidents in accordance with the law, report to the State Council administrative department of health.
Chapter V Compensation for Medical Accidents
Article 46 In the event of a dispute over civil liability, such as compensation for medical accidents, doctors and patients can negotiate a settlement; unwilling to negotiate or consultation fails, the parties concerned may apply to the administrative department of health to mediate, or directly to the people's court to bring a civil action.
Article 47 of the two parties to resolve the civil liability disputes such as compensation for medical malpractice, shall make an agreement. The agreement shall set out the basic situation of the parties and the cause of the medical incident, the parties *** with the determination of the level of medical malpractice and the amount of compensation determined by negotiation, and signed by both parties on the agreement.
Article 48 has been determined to be medical malpractice, the administrative department of health shall medical malpractice disputes between the parties request, can be mediated compensation for medical malpractice. Mediation, shall follow the principle of voluntariness of the parties, and shall calculate the amount of compensation in accordance with the provisions of these regulations.
After mediation, the parties on the amount of compensation agreement, the production of mediation, the parties shall fulfill; mediation fails or mediation agreement after a party to repentance, the administrative department of health is no longer mediation.
Article 49 Compensation for medical malpractice shall take into account the following factors to determine the specific amount of compensation:
(1) the grade of medical malpractice;
(2) the degree of responsibility for medical negligence in the consequences of medical malpractice;
(3) the relationship between the consequences of medical malpractice damage and the patient's pre-existing medical 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 occurrence of the medical malpractice, in accordance with three times the calculation; no fixed income, in accordance with the medical malpractice occurs 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) escort fee: the patient needs to be accompanied during hospitalization, according to the average annual salary of the employee in the year where the medical incident occurred.
(v) Disability living allowance: according to the disability grade, calculated in accordance with the average annual cost of living of the 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, for those over 60 years of age, it shall not be more than 15 years; for those over 70 years of age, it shall not be more than 5 years.
(6) Disability Appliance Fee: If you need to configure compensatory functional appliances due to disability, with the certificate of the medical institution, the fee shall be calculated according to the cost of universal appliances.
(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 the person who is unable to work, in accordance with the minimum standard of subsistence guarantee for residents of the place of domicile or residence. For those who are under 16 years of age, they shall be supported until they reach 16 years of age. For those who have reached the age of 16 but are incapable of labor, they shall be supported for 20 years; however, if they are over 60 years of age, they shall not be supported for more than 15 years; if they are over 70 years of age, they shall not be supported for more than 5 years.
(ix) Transportation fee: calculated according to the actual necessary transportation cost of the patient, and paid with the evidence.
(j) Accommodation expenses: calculated in accordance with the standard of business trip accommodation allowance for the general staff of the 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. If it results in the death of the patient, the maximum number of years of compensation shall not exceed 6 years; if it results in the disability of the patient, the maximum number of years of compensation shall not exceed 3 years.
Article 51 The transportation, lost labor and accommodation expenses required by 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 Compensation costs for medical malpractice, the implementation of a one-time settlement, paid by the medical institution that bears the responsibility for medical malpractice.