Over the past decade, with the continuous development of China's medical and health care, medical-related laws and regulations are improving, citizens' awareness of their rights has gradually increased, and disputes between doctors and patients are increasing, and have become a hot issue of concern to society as a whole.
Beijing Xicheng Procuratorate in recent years on the acceptance of the medical dispute complaint case analysis and research found:
A, in recent years, the main features of the medical dispute complaint cases
(a) the number of medical complaints increased significantly
With the people's health consciousness and legal awareness continue to strengthen, began to seek multi-level legal support, the medical behavior of the question and dissatisfaction from the quarrels and disputes. The Xicheng Procuratorate's Civil Affairs Division received and reviewed more than 10 percent of all medical tort cases in 2011 and 2012, triple the total number of such cases reviewed in 2008 and 2009.
(2) Resolving conflicts becomes focus of medical dispute review
The focus of the medical dispute is whether financial compensation should be awarded.
The patient (or family members) that due to the existence of improper medical treatment to their own physical, material and mental multiple damages, should be financial compensation or follow-up treatment, and follow-up treatment of the enormous pressure to make financial compensation more realistic; medical institutions using medical knowledge, medical services for the treatment of the patient, that has been based on the norms of diagnosis and treatment of the duty, resulting in the patient's death, disability and unfortunately, the consequences are often the result of the lesion, the patient's medical service. Consequences of the patient's death, disability and unfortunate consequences are often the cause of the lesion, the patient's age, other complications and other factors of the patient himself, as well as normal surgical risks and sequelae, there is no question of medical infringement. Both sides of the fact that the determination and the amount of compensation is more controversial, most of the complainant's strong words, emotional, prosecutors review such cases should focus on the interpretation of the law and analysis of reasoning, the comprehensive use of prosecutorial conciliation, prosecutorial advice, and other ways to try to resolve the conflict in the stage of the complaint.
(C) of the medical complaint case filed a protest to become a new breakthrough in civil prosecutorial supervision
For a long time, the review of medical dispute complaint cases to the medical malpractice findings as the core evidence, as long as there is not constitute a medical malpractice of a clear identification of the medical side of the medical diagnosis and treatment of work, even if there are some improper, often difficult to use this as a reason for the protest.
The continuous improvement of medical legislation, so that the people's court of medical disputes gradually change the way of thinking, the procuratorate also adjusted the review of such cases.
Earlier this year, the Xicheng Procuratorate, the Beijing Municipal People's Procuratorate to the court of the city's first medical infringement disputes filed a protest. Court retrial, by all parties *** with efforts, finally prompted the parties to reach a settlement, successfully resolved the conflict between the two sides for seven years, for the future review of the medical dispute complaint case provides a very valuable experience.
Second, the review of medical complaints found in the case and the causes of the problem
Medicine and the complexity of the medical means of medical specialization so that doctors and patients in the treatment is clearly in the rights and obligations of the state of inequality.
In order to adjust this special relationship, the Rules of Civil Procedure Evidence will be the medical behavior whether there is fault of the burden of proof, inverted to the medical institutions, the Tort Liability Law will be the responsibility for medical damages for the presumption of fault, but the patient still has the responsibility of proof of certain facts. In many years of medical dispute complaint case review process, we found that the medical dispute litigation exposure of the following problems:
(a) the patient's participation in the litigation is still in a weak position
Come to the procuratorial organs to complain about the medical dispute cases are patients (or family members), we found that the vast majority of patients lack of medical knowledge, and do not have the participation in the litigation of the legal rules and litigation skills, failed to pass the lawsuit and the lawsuit. And litigation skills, failed to achieve the purpose of compensation through litigation, the specific problems are as follows:
1, the lack of basic knowledge of medical litigation
"The Chinese people's *** and the National Civil Procedure Law" Article 119, paragraph 2, the prosecution must have a clear defendant. A clear defendant not only means that the plaintiff knows who he is suing, but also must identify the defendant's official name approved by law.
For example, Mr. Chen sued a hospital in court, but when he wrote the name of the defendant, he used a common verbal expression without checking the official name of the hospital with the relevant authorities, and the court dismissed the case. There are also some complainants do not understand the legal terminology, such as Wang Mou in the litigation completely do not understand the meaning of "questioning", that only the hospital with the evidence to persuade their own called questioning, if not persuade their own, this evidence has no legal effect, can not be admitted by the court. These misconceptions will affect the complainant's effective use of the law to protect their own interests.
2, lack of awareness of the collection and preservation of evidence
Medical Accident Regulations, Article 18 provides that the death of the patient, doctor and patient parties can not determine the cause of death or the cause of death of disagreement, should be carried out within 48 hours after the death of the patient autopsy.
The vast majority of patients' families do not have autopsy consciousness or do not understand the autopsy time limit, due to the lack of autopsy results can not identify the cause of death of the patient, resulting in medical responsibility can not be determined in the phenomenon of medical litigation is not uncommon.
For example: Sun's son was treated in a hospital, returned home to further recuperate, unexpectedly half a month after the child suddenly fell at home and died. Huge grief overwhelmed the parents, but did not think to conduct an autopsy. The parents argued that the hospital's treatment constituted medical malpractice, but ultimately lost the case because they were unable to determine the child's death.
In addition, many patients' families believe that they are the witnesses of the medical activities and what they see is the evidence, but they do not have the sense to fix the evidence.
In the early stages of treatment, the patient is not possible in the hospital on the doctor's treatment process and conversation audio and video. After the dispute arose, the medical association and the court used the medical records submitted by the hospital as the main evidence to check and analyze. Many complainants, at the case review stage, claimed that the medical records did not correspond to the objective situation at the time of treatment, but were unable to provide sufficient evidence to prove it. When they lose their cases, the complainants feel resentful and inevitably complain to others, intensifying the conflict. This phenomenon is worse than the success or failure of a case, may lead to a serious public **** credit crisis [1].
3, timely access to medical records is still difficult
Medical records are medical institutions of the patient's medical process records, should be objective and true, in the litigation is also to prove that the medical institutions are in line with the medical routine of one of the core evidence.
Some of the complainants were not clear about the best time and way to access and seal the medical records, some of them could not reasonably challenge the records, and some of them did not know that the challenge to the records could be resolved through the cross-examination process in the litigation.
The reason for the complainant's inability to obtain medical records in a timely manner is not unilateral, as there are still some medical institutions that are slow to comply with patients' requests for access to medical records.
As Qin's husband died in a hospital, Qin that the hospital rescue is not timely, to the hospital to request a copy of the medical records. The hospital after several excuses for Qinmou copy of the medical records, but does not allow Qinmou to take the copies, helpless, Qinmou will be the hospital to the court, only after the death of her husband a year to obtain a copy of the medical records in the hospital.
(2) some medical institutions management lack of standardization
1, part of the medical institutions medical records management lack of standardization
Medical records is a medical institution diagnostic and treatment activities of all records, in the law has to prove that the medical institutions whether or not there is a medical error of significance.
At present, the phenomenon of medical institutions altering and replacing patients' medical records still exists. The ministry of health has "altered, forged" medical records of the phenomenon of the approval, allowing "the normal medical records and the higher level of the physician's visit to modify the normal (should be preserved in the original handwriting clearly legible)" and that "if the removal of altered, forged part of the case, the case can not be identified If the altered or falsified part is removed, the case cannot be identified, the Medical Accident Technical Committee may not appraise the case, and the parties concerned shall directly apply to the People's Court to pursue their corresponding legal responsibilities." People's Republic of China *** and State Tort Liability Law, Article 58 is more provisions, the patient has damage, medical institutions have forged, tampered with or destroyed medical records, presumed that the medical institution is at fault.
Judicial practice, the complainant is very dissatisfied with the phenomenon of alteration and replacement of medical records, especially the appraisal department will be the complainant challenged the fault of the medical records of the alteration of medical records for improper management of medical records can not be recognized.
For example: zhao mou found himself in the hospital photocopy of the medical records and the hospital in the court submitted medical records are not consistent, there are several pages of the medical records of the phenomenon of replacement, so on the replacement of the medical records of the court, the court finally ruled that the hospital on the replacement of the medical records of the hospital to zhao mou to apologize and compensation for the loss.
At present, based on the authenticity of the medical records have doubts, further doubts about the medical behavior, and ultimately on the appraisal conclusion and the court's decision to be unconvinced, some of the complainants complained of one of the main reasons.
2, the medical institutions of the risk of informing still need to continue to improve
Case review, medical institutions in the treatment and surgery and other medical activities in the risk of informing the process of the inadequacy of one of the triggers of medical disputes.
A typical case is the medical infringement case between He and a hospital.
The hospital decided to change the surgical procedure for He after his hospitalization due to his physical condition and the need for surgery, which was not improper, but failed to inform the patient and his family of the contents and consequences of the change and the risks of the surgery.
The hospital's failure to fulfill its obligation to inform the patient caused the patient unnecessary pain and suffering, which directly led to the civil suit. The medical association "comprehensive analysis of the plaintiff's condition, diagnosis and treatment process, concluded that the hospital's choice of surgery is not a violation of the diagnostic and therapeutic routines, surgical consent in the surgical method of both parties to understand the existence of controversy, the defendant changed the preoperative surgical method did not explain clearly to the plaintiff fully, but the implementation of this operation and the surgical consent of the surgical procedure decided to match the surgical method, the plaintiff is currently part of the right knee dysfunction for the postoperative period. Complications ...... treatment does not belong to medical malpractice," the court held that the medical institution does not constitute medical malpractice, dismissed the claim for compensation.
The Xicheng Procuratorate, after reviewing the hospital's treatment behavior does not constitute medical malpractice, but infringes on the patient's right to know and the right to choose, according to the law should still be compensated. The case to the court after the protest, the two sides on the issue of compensation to reach a settlement, the conflict can be successfully resolved. Similar situations exist in many hospitals to varying degrees, the objective of the patient and the medical institution will cause damage.
(C) medical malpractice appraisal controversial
Medical malpractice technical appraisal is a lot of medical infringement of the main evidence of the dispute.
In the court hearing stage, the parties apply, and by both sides of the consultation or the court ex officio decision to entrust all levels of medical associations to organize the technical appraisal of medical malpractice. Identification is one of the key evidence for the court to determine whether the medical institution should bear medical responsibility, but also one of the focus of the vast majority of civil complaint cases.
1, the medical association appraisal structure needs to be improved
Medical behavior has a strong professionalism, hospitals in the exercise of medical behavior in the process of medical malpractice or fault, should be handed over to the statutory departments for identification.
We examined the medical dispute cases, some complainants in the court hearing stage of the medical association responsible for medical malpractice appraisal of the composition of a certain degree of skepticism. The Interim Measures for the Technical Appraisal of Medical Accidents stipulate that the medical association responsible for the first technical appraisal of medical accidents shall, in principle, employ experts from the administrative region to set up a pool of experts. However, all hospitals are members of the Medical Association, and there is a close relationship between the members of the medical malpractice appraisal and the medical institutions, and even the doctors of the medical institutions. The impartiality of this appraisal system has been a topic of debate for many years.
So, many complainants, such as: Liu v. A hospital tort dispute, the district medical association concluded that the hospital to Liu's treatment does not constitute medical malpractice, out of the impartiality of the appraisal of the lack of confidence, as well as to increase the appraisal of a large sum of money the double consideration of the appraisal fee, in the court of second instance procedure, have no choice but to give up to the municipal medical association to apply for appraisal of the right.
At present, the court, according to the party's application to commission an appraisal agency on the medical institution whether there is medical fault, and the fault of the damage consequences of the participation of the judicial appraisal, so that more and more parties to the appraisal of the more recognized.
2, the objectivity of the appraisal materials need to be correctly understood
Hospitals in the patient's medical records produced by the patient is true, objective, is often the focus of medical disputes.
The complainant does not recognize the medical records, most of the medical records for the alteration of the problem, but Li v. a hospital medical infringement dispute is not so. Li argued that the medical records of a hospital treating him had been rewritten. But from the hospital to the appraisal department and the court submitted to the medical records, intuitive medical records, no modification, scribbling, adding traces, the hospital believes that the medical records are true and effective, a true record of the patient's whole process of medical treatment. However, the complainant insisted that the contents of the medical records on the contradictions, lack of authenticity, refused to use the medical records as the appraisal of the test material. However, the existence of contradictions in the medical records was the material on which the appraisal department determined whether the hospital was at fault, and the authenticity of the medical records themselves was not the same concept. Misunderstanding of the complainant in the lawsuit lack of evidence to support their claims, resulting in the loss of the case, and turned to the procuratorial authorities to apply for an appraisal. The prosecuting authorities examined the case against the legality and reasonableness of the court's proceedings, and could not support the complainant's application for an appraisal, which lacked legal grounds.
Three, the review of medical dispute cases and suggestions
After many years of civil supervisory practice, the Xicheng Procuratorate of the review of medical disputes has formed a more mature ideas, and from the perspective of supervisory review of medical cases to think about the corresponding recommendations.
(A) about the medical dispute cases of procuratorial supervision
1, case review specialization
Since 2011, the Xicheng Procuratorate civil affairs department began to try to civil cases to professional categories of grouping cases, medical disputes by the specialists to review the better results. First of all, a person in charge of medical disputes can focus on mastering the laws and regulations, improve the pertinence of the case review; secondly, a person in charge of contact with the medical association, the appraisal department, the medical management organization of medical information, the export of a unified, easy to communicate with the professional; once again, a person in charge of in-depth study of medical knowledge, understanding of the court's principle of the trial of the medical disputes and the scale, easy to the complainant for interpretation of the law and analysis of the reasoning.
2. Diversification of social management
Reviewing medical disputes is difficult, and the social responsibility is large, it is necessary to use a variety of ways and means to actively participate in the management of society, contributing to the resolution of social conflicts.
Over the past few years, the Xicheng Procuratorate has issued general procuratorial recommendations to several major general hospitals and specialized hospitals in the Xicheng District of Beijing, urging the hospitals to fully fulfill their obligations to inform and strengthen the responsibility for the treatment of patients and the improvement of medical norms and management; and issued general procuratorial recommendations to certain appraisal organizations related to litigation, pointing out that they have to adopt various ways and means to actively participate in social management and contribute to the resolution of social contradictions. Issued a general procuratorial recommendations, pointing out the problems in the appraisal process, put forward suggestions and recommendations for rectification, have received a letter of reply from the suggested units, a strong protection of the legitimate rights and interests of patients and doctors, in reducing the disputes between doctors and patients to play a good social effect.
3, review process simplification
Medical disputes, although they occur in the medical treatment of patients after the end of the diagnostic and treatment activities, but some of the patients are still in urgent need of a large number of costs to continue treatment. By advancing the examination of medical dispute appeals, or simplifying the examination process under the conditions stipulated by law, and informing the complainants of the examination conclusions in a timely manner, the complainants can reduce the negative emotions and economic losses brought about by the long examination period in the procuratorate.
4, supervision position neutralization
Procuratorial review of civil appeals, must be based on the law within the supervisory responsibilities. As the procuratorial review of civil appeals more contact with the complainant, especially in the review process of medical disputes, the patients themselves (most of them are already suffering from disabilities or serious sequelae), photographs, as well as part of the physical evidence will bring intuitive feeling to the case officer, the formation of psychological sympathy. In order to avoid the negative impact, the contractor to strictly grasp the review criteria, first of all, review the legality of the court's proceedings, which is particularly critical to the examination of the examination procedures provided to the appraisal body samples; in the premise of procedural legality and then review the evidence, can avoid the emotional bias of the contractor, a fair review of the case.
(2) on medical issues related to the recommendations
1, medical activities have a strong professional, due to the lack of medical and legal knowledge for the patient side of the adverse consequences are obvious. Patients in dispute with the hospital, the first thing should be calm thinking, to avoid impulsive, speculation, or dissatisfaction with the work of individual doctors, nurses and easily resort to the court, resulting in unnecessary litigation; patients can contact with the Beijing Municipality or various districts and counties of the Medical Disputes Adjustment Center for early mediation, as far as possible to resolve disputes through friendly negotiation; even if it must be taken to court, the patient side is best to ask for medical expertise of the professional Even if the case has to be taken to court, the patient is advised to ask a professional with medical expertise to represent him in the lawsuit, so as to fully protect his personal interests.
2, try to medical malpractice appraisers in court. Ministry of Justice, "judicial expert management measures" article 29 has been stipulated in the judicial appraisal of the obligation to appear in court on time, but medical malpractice appraisal personnel to appear in court to testify, but there is no legal provisions. Medical malpractice appraisal is the appraisal of medical professional knowledge, experience on the medical activities of medical malpractice analysis and argumentation, the final opinion of the process. Appraisal is the same as physical evidence, documentary evidence and other types of evidence, its effectiveness must be examined by the court can be recognized. When there are contradictions between the identification of the conclusion and other evidence, especially medical records, such as adding, alteration and so on, please appraisal of the identification of the conclusion of the court to make a more detailed explanation of the facts of the case is conducive to the judge to identify the facts of the case, to make a fair ruling, but also conducive to the patient side of an objective understanding of the medical side of the therapeutic activities to reduce the inner doubts and misunderstandings, to eliminate dissatisfaction with the health care institutions, and thoroughly resolve the dispute between the patient and the doctor.
3. It is recommended that medical institutions improve their systems.
(1) Risk notification system. Article 55 of the Tort Liability Law provides that medical institutions "to carry out surgery, special examination, special treatment" should be "timely to the patient to explain the medical risks, alternative medical programs and other circumstances, and to obtain their written consent," and stipulates the violation of the legal consequences. Article 25 of Beijing Municipal Higher People's Court Opinions of Beijing Municipal Higher People's Court on Several Issues Concerning the Trial of Cases of Disputes over Medical Damages (for Trial Implementation) stipulates that, if a medical institution is able to inform the patient or his/her family members of the patient's condition, medical treatment measures and medical risks and to obtain the patient's consent but fails to do so, it shall be deemed that the medical institution has violated the duty of notification; and Article 26 stipulates that, the violation of the duty of notification by a medical institution So that the patient fails to exercise the right to choose, resulting in damage to the patient's consequences, the medical institution shall bear the corresponding liability for damages.
The right to information and the right to consent are the rights that patients should enjoy in medical institutions. Patients have the right to obtain basic information about the means of treatment used by medical institutions for their own health, and medical institutions should respect the patient's right to choose.
(2) autopsy application notification system. Although autopsy is not a necessary procedure for every medical dispute, the conclusion of the autopsy will directly determine the direction of the dispute between the patient and the doctor. Medical institutions should be appropriate ways to let the family in the death of the patient to decide whether to carry out an autopsy, not only to be able to identify the right and wrong, but also to facilitate the dispute resolution of non-litigation.
(3) the establishment of medical records to amend the description system. Medical institutions according to the treatment of the objective situation of the medical record to make additions or modifications, and does not violate the rules of diagnosis and treatment. However, in the process of medical litigation, once the patient found that the medical record has been altered, modified or other replacement, the medical institution is obliged to explain the legality of the above behavior, the appraisal department should also be on the behavior of medical management is improper or medical error appraisal.