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Case introduction
Public Prosecution Organization Shanghai Zhabei District People's Procuratorate
Accidental civil litigation plaintiff ( Appellee) Wang Mingguo
Defendant, incidental civil action defendant (appellant) Guo Yunna
Defendant Guo Yunna in the case of not obtaining the city's health administrative department to review the issuance of licenses to practice, in the city's borrowed residence in the city of Guangzhong West Road, Lao Xuzhai No. 47, the practice of medicine illegally.7 a.m. on February 7, 1999 after 7:00 a.m., the victim Hou Sumei accompanied by her sister-in-law, Wang Fengqin accompanied by her sister-in-law, Wang Fengqin, went to No. 47 Old Xuzhai and asked the Defendant to deliver her baby. The Defendant conducted an examination and confirmed that Hou Su-mei was 24 days past her due date and that the woman was in normal labor. Around 6:20 p.m. that day, the Defendant made a 45° perineal lateral cut on Hou Sumei, and Hou delivered a baby boy, who was not breathing and had no heartbeat, so the Defendant administered mouth-to-mouth resuscitation and injected the baby with a respiratory stimulant and a cardiac stimulant, but the baby did not come back to life. Because the placenta had not been delivered, the defendant gave Hou Su Mei an artificial removal of the placenta at 6:40 p.m. When the placenta was removed, a birth control ring was removed at the same time. In order to prevent the placenta from remaining in the uterus, the defendant injected Hou with oxytocin. Immediately thereafter, Hou suffered hemorrhaging and vomiting. At 7:20 p.m. that evening, Hou Su Mei was sent to the Shanghai Railway University Medical College Affiliated Ganquan Hospital (hereinafter referred to as the hospital) emergency, to the next morning at 2:05 a.m. died. On the 11th of the same month, the defendant Guo Yunna surrendered.
The Procuratorate alleges that: the defendant Guo Yunna without medical qualifications and health department issued a license to practice, the use of the wrong method of assisted delivery, to the newborn died at birth due to craniocerebral injury, Hou Sumei due to post-partum hemorrhage was sent to the hospital to rescue the death of his behavior constitutes the crime of unlawful practice of medicine.
Accidental civil lawsuit plaintiff Wang Mingguo claim: because of the defendant Guo Yunna's behavior led to the victim Hou Sumei postpartum hemorrhage caused by hemorrhagic shock and death, the court ordered the defendant Guo Yunna compensation for medical expenses, funeral expenses, lost wages, child support, alimony and mental compensation *** totaling 13.06 million yuan.
The defendant argued that: its method of assisted delivery is not wrong, the newborn is not live birth, the newborn died due to craniocerebral injury has nothing to do with it, and it did not delay the victim's resuscitation time. The defendant expressed willingness to compensate for the incidental civil lawsuit plaintiff's economic loss, but not capable of compensation. The defense argued: the defendant Guo Yunna's method of assisted delivery is correct. Judicial appraisal only based on the newborn lung flotation positive test is positive that the newborn is a live birth, insufficient basis, the conclusion is wrong. The victim Hou Su Mei was sent to the hospital for more than six hours before death, the main reason for his death is the hospital did not actively rescue. The defendant is a self-surrender, can reduce the punishment.
Court trial
The court of first instance held that the defendant Guo Yunna in the absence of a doctor's qualification and license to practice illegal medical practice, resulting in the death of the patient, the consequences of which are particularly serious, and his behavior has constituted the crime of illegal medical practice. The defendant has surrendered, according to the law can be mitigated punishment. The incidental civil damages should be awarded according to the facts. Accordingly, for the crime of illegal practice of medicine, sentenced the defendant GuoYunNa 10 years imprisonment, a fine of 10,000 yuan; compensation for incidental civil plaintiff WangMingGuo economic loss of 116,400 yuan.
The defendant Guo Yunna did not accept the first instance verdict, filed an appeal. Guo appealed, the first instance criminal verdict on the evidence is not clear, the cause of the consequences and responsibility without analysis, all the responsibility is attributed to the defendant, resulting in a heavy sentence; first instance incidental civil verdict also failed to distinguish responsibility, all the responsibility for compensation is imposed on the defendant.
The defense proposed that the original verdict found the defendant guilty of illegal practice of medicine without objection, but the original sentence there are problems. Incidental civil compensation judgment, also did not fully consider the incidental civil plaintiff's fault and the hospital should bear the responsibility. It is hoped that the second trial will reduce the defendant's punishment and deal with the civil compensation in a realistic manner, based on the complex causality and fault responsibility of the case.
The Second Branch of the Shanghai Municipal People's Procuratorate believes that the first trial verdict found that the defendant Guo Yunna constituted the crime of illegally practicing medicine and that the characterization was accurate. From the actual situation of the case, the victim was in labor more than the due date, postpartum hemorrhage, the defendant can actively send the victim to the hospital, and after learning of the victim's death, but also take the initiative to surrender. Therefore, in the sentencing should be taken into account. The court of second instance that: the trial judgement that the defendant Guo Yunna in the city without obtaining the administrative department of health examination and issuance of license, in the case of its borrowed residence in the city of Guangzhong West Road, No. 47, old Xuzhai illegal practice of medicine. the morning of february 7, 1999, Guo Yunna for the victim Hou Sumei delivery, Hou postpartum hemorrhage was sent to the hospital the facts are clear. However, the trial in the lack of time and cause of death of the baby and the lack of sufficient evidence and did not obtain a complete history of some of the history of information and traces of modification, and did not identify the hospital to rescue the patient's whole process of the case, that the defendant Guo Yunna illegal practice of medicine caused death of the facts are not clear, the evidence is insufficient. After the delivery of the baby did not breathe, the defendant artificial respiration for the baby. Judicial appraisal of the baby lung float positive test based on the baby's independent breathing, the baby was born alive. The "Supplementary Explanation" on the cause of the baby's death concluded that the baby's death was related to a craniocerebral injury. However, the forensic examination did not reach a clear conclusion as to when and why the baby died. The trial did not identify the time and cause of the baby's death, the defendant's behavior and the baby's death of a direct causal relationship, and how much responsibility should be borne for the death of the baby's case, the verdict that the defendant's illegal practice of medicine caused the death of the baby lack of factual basis. The Ministry of Justice's Institute of Forensic Science and Technology [1999] Sickness Identification No. 014 identified Hou Su-mei as having "multiple longitudinal lacerations of the lower part of the cervix, with full-layer lacerations at 3 and 9 points, accompanied by hemorrhaging of the cervical muscular layer," and that "Hou Su-mei's post-partum hemorrhage was caused by cervical laceration and residual placental tissues, with the former predominating," and that the hospital's diagnosis of "cervical laceration, a little fetal membrane tissue in the cavity, and no visible fetal tissue, was not apparent. There was no tearing of the cervix, a small amount of fetal membranes in the uterine cavity, and no obvious placental tissue" is inconsistent with the hospital's diagnosis. At 7:20 p.m. that night, Hou Sumei was sent to the hospital emergency, until 2:05 a.m. the next day died, the bleeding has not been stopped, the total amount of bleeding reached 2,300 ml, and the cause of the bleeding has never been clear. Until 10:30 that night, Hou was diagnosed as pathological obstetrics due to dic (diffuse intravascular coagulation) late. However, the forensic examination did not find that the postpartum hemorrhage was caused by dic. A "discussion and analysis" of the hospital's complete medical history documented that dic is a cause of postpartum hemorrhage and that dic can also be the result of postpartum hemorrhage resulting in hemorrhagic shock. If Hou Su-Mei was admitted to the hospital and went into hemorrhagic shock resulting in dic, which was the result of postpartum hemorrhage that was not stopped in a timely manner rather than the initial cause of the postpartum hemorrhage, then the hospital made a diagnostic error. What exactly is the relationship between the diagnostic error and Hou Sumei's death is a key fact in this case. The trial court in the absence of this key fact, the death of Hou Su Mei completely attributed to the defendant's illegal practice of medicine, that the defendant's illegal practice of medicine caused the death of Hou Su Mei, also lack of factual basis. The trial, without ascertaining whether the defendant on Hou Su Mei's death should be fully responsible for the case, the verdict by the defendant to compensate for the incidental civil lawsuit plaintiffs due to Hou Su Mei postpartum hemorrhage and death of all the economic losses caused by the obviously inappropriate, according to the law should be notified to the hospital to participate in the lawsuit, to find out whether the hospital has not been able to rescue the problem, the hospital in the incidental civil lawsuit, belongs to the necessity of * * * with the lawsuit defendant. However, due to the trial court did not notify the hospital to participate in the second trial could not add the hospital as an incidental civil lawsuit defendant and confirm whether it in the process of rescue Hou Su Mei fault, and thus can not confirm the defendant should be Hou Su Mei's death and incidental civil lawsuit plaintiffs of economic loss to bear how much responsibility. Accordingly, the court of second instance, according to law, the court of first instance of the criminal incidental civil judgment, remanded for retrial.
The court of first instance, after retrial, held that the defendant Guo Yunna practiced medicine without obtaining a doctor's qualification and license to practice, and seriously harmed the health of the people who visited the clinic, and that her behavior constituted the crime of illegal practice of medicine. With regard to the incidental civil compensation part, after mediation, the incidental civil plaintiff and the defendant did not agree on the liability and amount of compensation, according to the law, a separate judgment. Accordingly, for the crime of illegal practice of medicine, sentenced to 5 years imprisonment, and a fine of 5000 yuan. Defendant Guo Yunna appealed the re-trial judgment and filed another appeal. Guo appealed, arguing that she did not use the wrong method of assisting in labor; that during the delivery, Hou Su Mei's sister-in-law had used her knees to squeeze Hou's abdomen, and that Hou's mother-in-law had used a towel to cover Hou's mouth, increasing the pressure when the cervix wasn't open all the way, which was the main cause of Hou's cervical laceration, postpartum hemorrhage, and ultimately the dic that resulted in the death of the newborn. Witness Wang Mingguo's statement is wrong. Hou Sumei died in the hospital, not in her clinic. Guo Yunna also suggested that he had an unshirkable responsibility for Hou Sumei's death and sympathized with her, willing to assume some responsibility for financial compensation, hoping to reduce the punishment.
The defense argued that the original verdict on the facts leading to the death of the baby and the direct cause of Hou Su Mei's death was unclear, the evidence was insufficient, the sentence was heavy, and requested a second review to clarify the facts and change the sentence according to law.
Shanghai Municipal People's Procuratorate, the second branch of the original trial decision is accurate, Guo Yunna's reasons for appeal and the original trial decision does not contradict each other, taking into account the special nature of this case, suggesting that the second trial combined with the facts of Guo Yunna's crimes to make a decision according to law.
The court of second instance held that the defendant Guo Yunna illegal practice of medicine, in the absence of complete medical equipment for the mother to deliver the baby, the baby in the delivery process of craniocerebral injury and death, the victim Hou Su Mei postpartum hemorrhage of the consequences of his behavior and the baby's craniocerebral injury has a certain relationship with the maternal cervical laceration due to postpartum hemorrhage has a direct relationship with the illegal practice of medicine according to law should be serious damage to the physical health of the patient. The criminal responsibility of attending the patient's physical health. In this case, the defendant illegally practiced medicine, and the result of physical damage to the mother, mother and child occurred during the delivery of the mother, both because of the defendant's illegal practice of medicine, and also because of its complex objective factors. Therefore, for the defendant's sentencing, not only in accordance with the criminal law principle of appropriateness of crime and punishment, according to the actual harmful consequences of the defendant's behavior and its subjective guilt, combined with the defendant's self-surrender of the post-crime performance, to determine his criminal responsibility, at the same time, should also from the value of criminal law to fully consider the defendant's criminal punishment of the social effect of the punishment, so as to be accordingly punished according to law. The trial court retrial did not fully consider the particularity of the case, the defendant Guo Yunna sentencing is too heavy, according to law should be changed. Defendant Guo Yunna appeal request for mitigation of punishment shall be allowed. Accordingly, the original judgment is reversed; to illegal practice of medicine sentenced to 2 years and 6 months imprisonment, and a fine of 2500 yuan.
Expert commentary
The defendant Guo Yunna without a doctor's license, in the absence of complete medical facilities for the mother to deliver a baby, and serious damage to the victim's health, constituting the crime of illegal practice of medicine, the facts are conclusive, there is no controversy, but in practice, Guo Yunna behavioral attributes, sentencing and other issues there is a big difference.
(a) the defendant Guo Yunna should not be directly responsible for the death of the mother and baby
The focus of the dispute is: the defendant's illegal practice of medicine and the death of the mother and baby with or without a direct causal relationship. To attribute the result to the perpetrator, it is required that the perpetrator's specific behavior and the result of a causal relationship. If there is a lack of causal relationship between the specific act and the result, the perpetrator is not culpable. Therefore, to correctly determine the defendant's criminal responsibility, must be to identify the cause of the baby's death and Hou Sumei was sent to the hospital during the period of time, the hospital whether the implementation of active, correct rescue measures as a prerequisite. In this case, the baby was delivered without breathing, heartbeat, may be asphyxiation in the process of delivery, may also be before delivery due to lack of oxygen death. Because the baby did not breathe after delivery, the defendant that the baby artificial respiration, the baby's lungs must have air into the judicial appraisal of the "baby lung floating positive test was positive" that the baby for the live birth of the baby, based on insufficient. Appraisal of the cause of death of the baby's "additional explanation" that the baby's death is related to craniocerebral injury. However, there was no clear conclusion as to the cause of the baby's death, nor was there any evidence to conclude that it was due to the defendant's improper handling of the baby. Therefore, when the baby died, the cause of the judicial appraisal did not make a clear conclusion, the trial court found that the defendant illegal practice of medicine caused the death of the baby lack of sufficient factual basis. Hou sumei department of postpartum hemorrhage caused by hemorrhagic shock death, but Hou in the defendant's clinic only postpartum hemorrhage, after being admitted to the hospital for nearly seven hours before death. And the hospital for Hou's bleeding cause has never been clear, and its diagnosis is inconsistent with the judicial appraisal. Although the victim of this case Hou Su Mei was admitted to the hospital has been critically ill, even if the correct, active rescue may also be difficult to save, but in the patient's critical moments, diagnostic errors are very likely to miss the best time to rescue. Therefore, Hou's death can not rule out the possibility of hospital rescue. The trial court did not obtain a complete medical history, did not pay attention to part of the history of the data have modified traces, did not analyze and compare the judicial appraisal and hospital history of the existence of obvious differences, and did not find out the whole process of the hospital to save the patient's case, simply confirm that the defendant for the death of Hou Sumei bear full responsibility, is factually inaccurate. The mother, baby death may be multi-cause and effect, the trial court in the absence of the facts of the case will be attributed to the defendant is clearly improper. The case remanded for retrial, the trial court did not find the defendant Guo Yunna should be responsible for the death of the mother, the baby, that Guo Yunna shall bear the illegal practice of medicine, serious damage to the health of the criminal responsibility in line with the provisions of the law and the logic of the trial.
(2) the court should fully measure the objective reality of the case
The trial court retrial of the defendant sentenced to 5 years imprisonment, and a fine of 5000 yuan of the verdict did not take into account the particularities of the case, not well reflect the principle of appropriateness of crime and punishment. For one thing, the defendant opened a private clinic to deliver a baby for a woman in labor, and harmed the health of the mother and child because of the poor equipment; from the standpoint of the requirements of the rule of law, his unlawful practice of medicine was socially harmful and should be punished by criminal penalties in accordance with the law. However, from a historical and sociological point of view, in places populated by outsiders, such as the defendant has a certain degree of medical knowledge and medical experience, but also practicing medicine without a license, both the nature of the violation of the law, but also its undeniable existence of historical reasons. The economic income of foreigners, most of them at a low level, difficult to enjoy the social security of the city residents, which determines the gathering place, there is a need for a series of meet the most basic needs of life, but also suitable for their economic status of the various service facilities. Defendant Guo Yunna opened a private clinic, it is adapted to the needs of outsiders for medical treatment. In this regard, the court should be from the consideration of the social effects of the defendant's illegal practice of medicine comprehensive evaluation of the behavior, to recognize the limited scope and limited degree of social harm, and as a mitigating circumstance to reduce the defendant's punishment of sentencing. Secondly, from the subjective aspect of the defendant's crime, the motive of the illegal practice of medicine is to make up for the family life, use their "skill" to earn some money, the nature of the illegal practice of medicine and the harmful consequences of the awareness of the relatively vague. From an objective point of view, the defendant used to be a doctor, the harm of his behavior and the illegal practice of medicine with no knowledge of the medical profession has a significant difference. Third, there is no evidence in this case that can determine the extent to which the Defendant's use of oxytocin resulted in craniocerebral injury to the infant, nor can it be determined that the Defendant's damage to maternal health has been irreversible. From the analysis of causation, the result of the physical damage to the mother and child in this case was not caused by the sole reason of the Defendant's illegal practice of medicine, nor was it a result inevitably caused unilaterally by the Defendant's illegal practice of medicine. And in the process of delivering the mother, the defendant did try his best. The above analysis of the nature of the defendant's behavior and its degree of harm shows that, in accordance with the principle of appropriateness of crime and punishment, the defendant should be mitigated, and in combination with the performance of the defendant's self-surrender, the punishment can be mitigated. The court of second instance according to the law to make a change in sentence to illegal practice of medicine, the defendant Guo Yunna sentenced to 2 years and 6 months imprisonment, and a fine of 2500 yuan is correct.