A medical service contract and the scope of medical disputes
According to the Modern Chinese Dictionary explains: medical, is the treatment of disease. Generally speaking the word so explained should be said to be correct. No disease does not seek medical treatment, no disease does not need treatment. But with the development of the times, the type of disease has changed, whether it is considered a disease, is also changing. For example, people are old, bags under the eyes, the past is not considered a disease; people are old, hair fall more, is not considered a disease, not to mention the elderly, is that some young people prematurely white hair, at best, known as less white head, others do not take it seriously, their own have also do not take it seriously. However, times have changed, people are pursuing beauty, what used to be commonplace may now be considered a disease or need to be treated. In other words, cosmetic surgery, which involves improving one's body shape or parts of one's body, has become a part of medical treatment. Therefore, can we say that the so-called medical treatment should be done to expand the interpretation, that is, including medical: medical treatment, including hospitalization, surgery, medicine, cosmetic surgery; treatment: treatment, including convalescence, physiotherapy, massage and so on. So the scope of the medical service contract should include the scope of its due.
1, the dispute occurred in seeking medical treatment. Some patients have been sick for a long time, hospitals have distrust, dissatisfied with the medicine, looking around for prescriptions. Some of them are found in the friends, some are seen in newspapers and magazines, some from the medical books. Then they follow the prescription to get the medicine, resulting in poisoning accidents. The reason for the accident is that some of the prescriptions published in the press are wrong, some of them are toxic ingredients in excess, some of them are not serious, writing prescriptions are wrong; some of them are the pharmacy pharmacist to see the wrong dosage or palm weighing inaccuracy; some of them are drugs in violation of the contraindications.
2, in the hospitalization of all kinds of disputes. Patients hospitalized for disease, and the hospital has a multifaceted relationship, the more the relationship between the possibility of disputes is greater. Patients hospitalized and hospitals formed a medical contractual relationship, so patients enjoy a variety of rights, of course, also have to bear the necessary obligations, the patient's obligations are mainly to pay medical fees and volumes of the hospital order. And the patient's rights should be said to be multifaceted, the patient's rights of the antithesis of the hospital's obligations. Whichever party violates its obligations will form a dispute.
(1) patients have the right to know. For the patient's disease, the patient needs to use the drug, the price of the drug, the consequences of the treatment of the patient has the right to know, the hospital has the obligation to inform, if the hospital is negligent or indifference, violation of the obligation to inform, to bear the corresponding responsibility.
(2) patients have the right to choose. When the patient has a correct understanding of what should be known, the patient has the right to treat or not to treat his own disease. Of course, if it is the end of the adult, this right is subject to certain restrictions, that is, should be exercised by their legal representatives. For the patient's right to choose, medical institutions should be fully respected, if the neglect or disregard for this right, self-assertion, the bad consequences, should be held responsible.
(3) the patient has the right to proper treatment. Patients with diseases to hospitals or other treatment institutions for medical treatment, hospitals should be responsible for the obligation of special care and attention to the patient's examination, should be a serious examination, can not be examined for no disease, will be a small disease examination for a serious disease or even terminal illness; treatment should be serious treatment, not allowed to appear sloppy, irresponsible situation, such as surgery will be scalpel, scissors or gauze fall in the abdominal cavity, the wrong ovary as a tumor Removal.
(4) Patients have the right to life and physical health in the hospital. In addition to the normal requirements of treatment, cure the disease, improve the physical condition, the patient also enjoys the right to normal life and physical health, in the hospital can not be due to defects in medical facilities so that the patient suffered accidental injuries, such as the need for oxygen, oxygen facilities are not good, the rescue is not in time to cause the patient's death; due to the night bathroom power failure no one to repair the patient fell.
(5) patients enjoy the right to fair service. Patients treat what disease spend what money, with what drugs spend what money, with how much medicine spend how much drug money, the same level of hospitals, there should be roughly the same charges, if the treatment of A disease spend B disease (high charges) money, with A drug spend B drug (high price) money, no use of drugs also spend money (more charges, charges under false pretenses), indiscriminate establishment of the project charges (ride on the charges), over-standard charges (general inpatient intensive care charges, general Ward charges high standard room charges), are all violations of the interests of patients, the patient has the right to file a lawsuit.
3, due to cosmetic surgery and disputes. All people love beauty, in recent years the disputes arising from cosmetic surgery more and more. There are due to cut double eyelid caused by the scar diarrhea eye; there are due to breast augmentation caused by inflammation and ulceration;, there is the use of cosmetic products caused by skin pigmentation that does not heal; cosmetic surgery to do disfigurement.
Two, some of the basic principles of dealing with medical service dispute cases
Because in the past in dealing with doctor-patient disputes, often accustomed to the medical malpractice appraisal as a prelude to the process, one is not after the appraisal of the case is not admitted, and secondly, if after the appraisal of the Medical Accident Appraisal Committee is not identified as medical malpractice, but also does not admit the case. If the patient insists on suing, then in the filing stage that is dismissed. In the supreme court has a new provision, that is, not to medical malpractice appraisal must be the front procedure, most judges are still accustomed to the old way of doing things. So to hear a good medical dispute case, should master several principles.
1, adhere to the principle of medical malpractice appraisal as a precursor. The Supreme Court ruled that the hearing of medical disputes, no longer to medical malpractice appraisal as a prerequisite, and not only a procedural comfort to the parties, to give a cushion to calm down the discontent, but in the past the negation of this practice. Because the medical malpractice appraisal as a prerequisite, undoubtedly equal to the medical malpractice appraisal is equal to the court's decision, because there is no or after the medical malpractice appraisal, not only can't win, you are not even qualified to sue. And the past medical malpractice appraisal although to a certain extent to protect the legitimate rights and interests of the parties. But because the appraisal committee is often composed of local medical experts, by its appraisal, is tantamount to let them give their own appraisal, its fairness is greatly reduced, the patient is also difficult to believe.
2, adhere to the principle of equal status of doctors and patients. The doctor is the master of the hospital, is the patient's God. Can be said to be in control of the fate of the patient, some doctors to not think of themselves as the patient treatment, for the patient service, but the patient has to ask for their own. Our country has long been in the public medical
3, adhere to the principle of fault. The principle of fault here, not only in the treatment of patients in the fault, including in the fulfillment of the medical contract throughout the process of fault. That is, in the fulfillment of the medical contract in violation of the general principles of contract law, that is at fault. In essence, it is the contractual principle of good faith. If a party to the contract violates the principle of contract, it is liable for breach of contract.
Three, some specific medical disputes
1, violation of the right to know the case
Medical service contract as a contract, as a service, the "Protection of Consumer Rights and Interests Act," the provisions of Article VIII of the "consumer enjoys the right to know the real situation of their purchase, use of goods or services accepted. "Article 8 of the Law on the Protection of Consumer Rights and Interests stipulates that "Consumers have the right to know the truth about the goods they buy, use or services they receive. That is to say, patients have the right to be informed and have a clear understanding of the treatment process of their diseases, the treatment measures to be taken, the purpose of the treatment, the cost of treatment, and the possible adverse consequences. It is then up to the patient to make his or her own, free choice, i.e. whether or not to be treated, whether or not to agree to undergo a procedure deemed necessary by the medical treatment or to use medicines recommended by the hospital, and so on. In this issue, the hospital's medical behavior is divided into two parts, namely, the act of informing and treating, regardless of which part of the fault will be held legally responsible. For example, patient Chen went to a hospital to perform lipoma removal of the left eye. After the operation, the left eye upper eyelid ptosis. Chen thought that the hospital had medical malpractice and asked for an appraisal. The result of the appraisal is: the hospital's diagnosis and treatment is not improper, the patient's upper eyelid ptosis is a complication of the surgery, does not belong to medical malpractice. Chen filed a lawsuit on the grounds that the hospital was at fault for the treatment and had not informed him of the consequences of the surgery beforehand, and demanded the hospital to pay 250,000 RMB in damages. The court of first instance found that the hospital in the diagnosis of no fault, but based on the hospital voluntarily pay Chen a certain economic compensation of the actual situation, in rejecting Chen's claim at the same time, the hospital was allowed to pay 30,000 yuan compensation. Chenmou appealed. The court of second instance, although the hospital in the diagnosis and treatment process is not at fault, but did not tell Chen the consequences of surgery, resulting in Chen could not choose whether the right to surgery, violating Chen's right to know. For this reason, the hospital should bear legal responsibility. The hospital was awarded a one-time compensation of more than 60,000 yuan for Chen. This shows that in order to treat certain diseases, in the process of surgery, there may be some unavoidable adverse consequences while treating certain diseases. For these adverse consequences, as a medical unit has the ability to know and the obligation to inform the patient to know. It is then up to the patient to decide independently and freely whether or not to still undergo this kind of surgery. If the patient still chooses to undergo the surgery even though he/she is aware of such consequences, then the adverse consequences after the surgery should naturally be borne by the patient himself/herself. For example, if a patient has a malignant tumor in his leg and must have his leg amputated, otherwise his life will be endangered, then the patient himself has the right to choose whether or not to amputate his leg. If the hospital does not inform, it is a violation of the obligation to inform, to bear legal responsibility. 2001 January 1, "zhejiang province & lt; Chinese people *** and the protection of consumer rights and interests of the state law & gt; approach" formally implemented. The approach stipulates that the patient belongs to the consumer. Medical institutions must respect the patient's right to know. Patients have the right to access, copy hospital records, medical orders, test reports, surgery and anesthesia records. Medical institutions to collect medical expenses must be detailed, and issued legal documents. Medical institutions due to the use of substandard drugs and equipment, or diagnosis and care errors caused by the patient's personal injury, must bear civil liability.
2, medical equipment, medical products unqualified damage caused by the formation of disputes
In some medical processes, the treatment of certain diseases require the use of certain medical equipment or medical products, as a hospital to ensure that the quality of medical equipment and medical products, and secondly, to protect the use of medical equipment and medical products and the use of the correct guidance and services, if the dispute. If a dispute occurs, it should bear the corresponding responsibility according to the principle of fault. Medical devices and new medical products are unqualified, may be the responsibility of the manufacturer, but as a medical should be the first responsibility. Such as Mudanjiang City, Zhao Mou see a hospital on the use of the latest introduction of the "OK" lens can make the myopia patients below 500 degrees quickly reduced to less than 75 degrees, the success rate of more than 95%, and the method of treatment, generally about a week to restore the natural visual acuity, a month after the consolidation of the stability of the propaganda to the hospital, the hospital After Zhao Mou a relevant examination data will be transmitted to the "OK" lens manufacturing company, to wear "OK" lenses. Zhao Mou in August 1999 to retrieve the "OK" mirror, the mirror does not have Chinese labeling of the production plant address, there is no warning instructions, the hospital only to Zhao Mou, the hospital formulated a "Patient Instructions". The use of the instructions in the instructions also did not use the mirror may cause what the consequences of the instructions and warnings. Because the incidentals for the use of the lens were not mailed to the hospital in a timely manner, the hospital handed Zhao half a bottle of nursing fluid, artificial suction rods, and other incidentals used by other patients.On August 2, 1999, Zhao began to use the lens, but found that the lenses ran out of alignment, and went to the hospital several times to reflect on the situation; however, the hospital replied, "Wear them for a period of time, and then you will be fine, and you are guaranteed that they will not break your eyes! ". To October of the same year, Zhao found that the eyes red and swollen, to several hospitals for treatment, diagnosed as a result of wearing "OK" lenses led to the right eye Pseudomonas aeruginosa corneal ulcers, after treatment of the right corneal leukoplakia, corneal transplantation should be made to treat. Zhao Mou sued the hospital to the court. The court of first instance rejected the claim on the grounds that Zhao did not agree to make a medical malpractice appraisal. The court of second instance upheld the appellant's claim and awarded the hospital RMB98,531.10 in compensation for medical expenses and disability compensation under the Product Quality Law and the Protection of Consumers' Rights and Interests Law. The first trial of the case, including the original court of second instance, was correct in holding that it was not a medical malpractice dispute. Because in the case of Zhao's eye cornea damage is due to wear "OK" lenses, not due to the hospital's medical staff diagnosis and care, this is correct, especially the hospital recommended and given treatment "OK" lenses do not have product quality inspection certificate, packaging did not indicate the "OK" lenses. In particular, the hospital recommended and given treatment "OK" mirror without product quality inspection certificate, packaging did not indicate the origin, factory address, warning labeling instructions, the product has a serious indication of defects, does not meet the product quality requirements. However, on the one hand, it was considered that the damage had nothing to do with the hospital's medical staff's diagnosis and nursing care, and on the other hand, it was considered that the hospital should have carried out the inspection and acceptance system of the "OK" lenses and verified the certificate of conformity of the product, and that the hospital did not inform the patients of the "OK" lenses after accepting the "OK" lenses. After receiving the "OK" lenses, the hospital did not inform Zhao of the possible danger of corneal damage that might exist if the "OK" lenses were improperly worn; in particular, when Zhao suggested that the lenses were uncomfortable, the hospital not only failed to deal with the problem, but also irresponsibly guaranteed that there would not be any problem that would result in Zhao's right eye being disabled to the ninth degree, and concluded that the hospital had been at fault, thus applying the Product Quality Law. In our opinion, there is no problem with the quality of the "OK" mirror as a product. However, the product was not purchased from a store by Zhao himself. Rather, it was advertised by the hospital and recognized by the hospital, and was used under the hospital's guidance. When the problem occurred, it was because of the hospital staff's assurance, so that Zhao continued to wear, where the damage caused by the hospital's inaction. Thus the dispute between the two parties is still a kind of medical dispute between doctors and patients. Imagine if the hospital had conducted an immediate examination when Zhao was sick, it could have stopped Zhao from wearing the "OK" lenses, and the final result of the damage could not have occurred. Zhao's relationship with the hospital is not just a sale and purchase relationship like buying goods or medical equipment in a store, and thus is not a general product quality liability dispute. In the case of both the hospital did not fulfill the obligation to inform the problem, but also in the treatment process irresponsible problem. Because in this case since zhao mou to the hospital to receive treatment, to the hospital for zhao mou check and customized "ok" mirror until zhao mou's eyes back to normal, the two sides have formed a medical contract relationship. The hospital's fault is due to the breach of contract, and from the breach of contract to make zhao mou eye disability, development to infringement. Therefore, it is no problem to judge the hospital to bear the liability. From this case also see, in the case of medical damage, can't still like in the past, just hang on the medical appraisal tree.
3, because the hospital service facilities, conditions are not perfect damage caused by the formation of disputes
As a medical institution, mainly hospitals, in addition to the appropriate amount of health care personnel with a certain level of professionalism and health care facilities, but also should have suitable for the treatment of the patient and hospitalization in the hospital during the normal hospitalization and stay in the hospital conditions. Here quoted the word "to be medical", that is to say, patients in the hospital in addition to medical treatment, but also due to their own conditions (such as serious injuries, serious illnesses, home is far away from home and can not go back and forth between home and the hospital), need to eat and stay in the hospital. In this way, the hospital, in addition to the medical treatment conditions, should also have the normal living conditions of the patient as at home, including food, housing, transportation, toileting and so on. If these conditions do not have or imperfect, there are defects, causing damage to the patient, should be liable. For example, the patient Liu in June 19, 2000 in the hospital for "total hysterectomy", June 21, 11 p.m. in the husband Zhang accompanied to go to the toilet, to the toilet after Zhang waiting outside. At that time, the light in the toilet was broken and there was no electric light. As a result, there was no light in the toilet, causing Liu to fall. Upon examination, Liu suffered a skull fracture and subdural hemorrhage in the right temporal region, and died as a result of resuscitation. Liu's relatives sued the court for compensation. The court of first instance held that Liu and the hospital had formed a medical service relationship, and the hospital should provide appropriate medical services. Inpatient toilet is a medical unit to provide medical services necessary accessory facilities. Women's restroom at night without electric lighting, fully demonstrates that it should provide medical facilities are defective, to the hospital infringement of the hospital judgment on the grounds of compensation for economic loss of 46,660.50 yuan. The hospital is not convinced, to Liu's husband to accompany improper fault, as well as the second hospital does not have a clear specification for the reason of appeal, that should not be liable. The court of second instance after review, the doctor and the patient formed a medical service contract relationship, the hospital should not only provide treatment services, but also to provide complete service facilities, but the fact that no light in its toilet exists, so that Liu in the toilet accidentally fell to death, the hospital there is a breach of contract, and should bear the responsibility of Liu's compensation. The first trial found that the cause of inaccuracy should be corrected, rejected the appeal, maintain the original judgment. Throughout the case, the first and second instance judgment should be compensated is correct, but the second court will be the court of first instance, the tort of this claim changed to the breach of contract correctly determine the nature of the case. Whether the hospital is in breach of contract, the hospital that there is no clear rules, is incorrect. Not to mention as a hospital, such as and many are sick, injured, some or disabled, they go to the toilet at night, not to mention the lack of light lighting, or dim lighting may cause their fall. Therefore, the hospital's fault should be obvious. And this fault, not directly due to the hospital itself, but in the performance of the medical contract, and thus should bear the responsibility for breach of contract. As for Liu's husband still have to bear some responsibility, is another issue, and is secondary.
4, because of the hospital in the security measures have problems in the formation of the consequences of the damage dispute
As a hospital, is the patient's medical treatment place, from the time of its hospitalization on the formation of the relationship between medical services, in addition to the patient's disease should be given the appropriate treatment, should also urn in the protection of their personal and all aspects of security. If because the hospital in the security loopholes, resulting in patients suffer personal injury or other personal damage, the hospital should also bear the necessary compensation. If the patient wang mou in the hospital for cesarean section, single room, the night hospital will baby in the room with the mother. Wang's husband for nursing, also live in the same room. Due to the two are too tired to fall asleep, the result of waking up to find the child lost, Wang will be the hospital to the court. The hospital refused to pay compensation on the grounds that Wang and her husband should not have fallen asleep at the same time. The court found in the hospital has unwritten rules, the room at night are not allowed to scratch the door from the inside, and there is no facility to scratch the door from the inside. The case as the court is also the rights and obligations of both parties to the contract of service to distinguish responsibility. The patient hospitalized in the hospital delivery, reason to enjoy their own and the child's personal safety rights, the hospital should also assume the corresponding obligations. If the hospital is not allowed to scratch the door, it should be able to protect the safety of the hospital at night. That is, in the patient and the escort fell asleep without personal safety accidents. Chaperones are not security guards and have no obligation to stay awake to watch over patients or to keep the hospital safe. Hospitals should consider certain rules that is conducive to their own work to protect their own interests, such as avoiding patient suicide and other factors, but also should consider the occurrence of other people invade the ward theft, murder, robbery and other factors. Therefore, if the hospital is negligent in the security facilities, and finally caused the patient's personal aspects of the damage, should bear the corresponding liability. Of course, this liability is still a breach of contract.
5, because of medical error damage dispute
Since we have made a distinction between medical malpractice damages and medical service contract disputes, and in fact in the division of the causes of our national law has been strictly these two cases as two causes. Medical malpractice damages are classified as a case of infringement of personal rights, while medical service disputes are service contract disputes. Medical malpractice damages are damages resulting from death, disability, or tissue and organ manipulation resulting in functional disorders directly caused by the negligence of a hospital's medical staff in the course of diagnosis and treatment. The damages caused by medical errors are the damages caused by the errors in diagnosis and treatment of medical personnel, which are not recognized as medical malpractice, or the parties do not request medical malpractice identification. In this kind of compensation case is often both sides of the word, no end of a yes. In view of this, such disputes should be handled differently.
(1) if the medical party admits fault, and has mastered and confirmed the content and degree of fault, the patient side also expressed recognition. The court then can compensate according to the size of the fault and the degree of damage.
(2) both sides of the controversy and can not reach a consensus on the understanding of the medical error should be identified. Here special emphasis and attention is to carry out the medical error identification or called medical fault identification, rather than medical malpractice identification. What is the medical fault identification, the supreme people's court institute of judicial science and technology he songyue in the people's court newspaper published in the medical dispute classification identification of the article clearly pointed out that "medical fault identification refers to the people's court on the basis of the authority, or at the request of the patient or the request of any party to the acceptance of the medical damages in the medical case of the medical side in the medical service for the patients. Whether there is medical fault in the process of receiving medical damage compensation case and the degree of damage caused by the specialized issues, entrusted with special knowledge of the analysis, assessment and judgment, in essence, is the judicial appraisal. Appraisal of the right to decide, entrust and organization and supervision by the people's court." At the same time, the article also emphasized that "medical accident appraisal should be organized by the people's court judicial appraisal institution of medical experts, the use of medicine and forensic medicine combined method, rather than entrusted to the health administrative department of the technical appraisal committee of medical accidents." Because: A. Medical malpractice appraisal must be signed and stamped by the appraiser to have legal effect. Litigation evidence must have objectivity, relevance, legitimacy at the same time, should also comply with the legal characteristics of the identification, namely: the people's court decision, commissioned identification, identification of conclusions made in the litigation stage, the implementation of the appraiser's responsibility and the system of court appearance, etc.. Medical malpractice appraisal does not have the above characteristics, should not and can not become the people's court acceptance of litigation cases and the prerequisite for the procedure, can not become effective evidence in the litigation. Moreover, the medical malpractice appraisal committee did not identify the medical administrative field of medical malpractice, is not equal to no tort of medical fault. b, medical fault identification is not only pure clinical medicine identification process, must use forensic science theory and practical experience to analyze and judge. For example, the medical record information modification, alteration of technical appraisal, the patient's primary injury injury time, injury mode of appraisal, etc. C, the people's court judicial appraisal institution according to law organized by the medical fault appraisal, is a third-party status of the appraisal in the middle. Appraisers and appraisal institutions sign and seal, bear the corresponding legal responsibility, with strict supervision and management, wrongdoing and appraisers appear in court system, can effectively guarantee the impartiality of the appraisal, scientific and judicial trial of the seriousness and authority. Medical fault appraisal and medical malpractice appraisal and medical malpractice appraisal constitute a unified and complete system of medical dispute appraisal. For the appraisal, the medical department is at fault, should bear the corresponding compensation responsibility.
(3) the content of medical error identification. At present, China's doctor-patient disputes are common in medical malpractice appraisal, that is, whether a medical event constitutes medical malpractice appraisal. China's general principles of civil law does not stipulate that must constitute medical malpractice in order to compensate, but there is fault should be compensated. Medical error appraisal and medical malpractice appraisal have different contents and requirements. The content of the appraisal should include: first, with or without the consequences of damage. Here is the damage consequences refers to the medical process should not appear in the consequences. Instead, the medical unit in order to treat the patient by the patient or his legal representative agreed to take the treatment behavior. Such as: amputation, removal of diseased organs; not in the medical process due to medical measures itself caused by the side effects and damage to the results; not due to the development of the patient's own disease caused by the irreversible results, such as, suffering from cancer surgery a few months after the death of the patient. That is, it is often said that the treatment of the disease can not cure life. Second, the cause of the damage consequences. That is, the diagnosis is wrong, or improper surgical program or surgical technology is not high, or the object of surgery is wrong. Third, the medical unit in violation of the contractual obligations of the behavior of the consequences of damage caused by the weight of responsibility. Fourth, whether the medical records of the medical unit have any problems, whether there is tampering, forgery and so on. Such as in a medical damage compensation case, first by the medical malpractice appraisal committee of the patient, that according to the principle of the determination of medical malpractice, does not constitute medical malpractice. The plaintiff was not convinced, the court commissioned the Beijing court science and technology appraisal institute for forensic identification of the patient, the appraisal results are: First, the hospital in the operation of the patient's right testicle mistaken for a hernia, resulting in the possibility of displacement of the right testicle. Second, the hospital had the following main defects in the treatment of the patient: (1) the preoperative examination was not perfect and the diagnosis was not clear. (b) The operator was inexperienced and did not pay attention to the position of the posterior testicle. (c) The medical record was written in an inconsistent and contradictory manner between the surgical record of the hernia repair and the postoperative medical record. The patient's testicles were still in good position, with no intrinsic damage, and there were still manifestations such as swelling and pain in the right side of the prepared testicle. According to the relevant provisions, this situation does not constitute disability. From this forensic identification can be more clearly understand the medical aspects of whether there is a fault, the size of the fault, whether to cause damage, whether to be compensated. Compared with the medical malpractice appraisal of the generalized appraisal does not constitute medical malpractice, it is more convincing. Whether compensation or not compensation, both doctors and patients are more acceptable.
(4) pay attention to the medical behavior is defective, but belong to the medical level or knowledge of the disease caused by different damage should not apply compensation. In practice, in the diagnosis or treatment of disease, but also can not be very accurate at once to determine the nature of the disease, or the beginning of the disease, and according to this judgment, surgery, but later after further analysis of laboratory tests, and a different understanding of the disease. In such cases, it is not appropriate to award compensation. For example, in a compensation, the patient is a young woman, admitted to the hospital for examination, found that "the right breast mass to be investigated; right breast lobular hyperplasia?" The hospital conducted preoperative puncture cytology and various routine examinations. The surgical plan was carefully discussed, and since the possibility of malignant transformation of the mass could not be excluded, it was decided that the patient would undergo "right breast lumpectomy + rapid frozen section examination", and if the mass was diagnosed to be malignant by the rapid frozen section pathology report, then it was proposed to undergo "modified radical surgery for right breast cancer", and relatives were informed of this. If the rapid frozen section pathology report diagnosed the mass as malignant, then "modified radical surgery for right breast cancer" was proposed and informed to the relatives and signed by them. Later, when the section was considered malignant, a relatively complete excision was performed. However, the sections were later analyzed by different medical institutions, and some of them were not considered to be malignant. Because this kind of tumor is rare, it is not easy to define in its early stage. However, as a patient, she did suffer a lot because of this. In this case, if the medical level and knowledge of certain tumors are really different, it is difficult to accurately determine the fault of the medical department, and the medical department should not be rashly adjudged to bear the responsibility. However, in such cases, some medical departments, out of sympathy for the patients, voluntarily give appropriate compensation, which should be allowed.
(5) due to other causes of injury and death, the medical unit is not at fault does not bear civil liability. Such as in some medical disputes, the victim is entirely due to other reasons (such as traffic accidents, killed, robbed, fighting, accidents, etc.) caused by injuries, and in the rescue process due to the severity of injuries or poor medical conditions and failed to rescue over. For the medical unit is not at fault should not be made to assume responsibility. Such as August 10, 2000 Chen was sent to a hospital for rescue due to a car accident, the hospital in the case of no deposit, immediately carry out ultrasound and other checks, and to take the wound pressure bandage, the establishment of intravenous channel anti-shock treatment and other rescue measures. Due to the seriousness of the injuries, the hospital transferred Chen to the City People's Hospital for treatment. However, Chen died after the failure of rescue. The two levels of medical malpractice appraisal committee appraisal, not only does not constitute medical malpractice, and without any medical error. Chen's family sued the court of first instance that although the hospital is not at fault, its death should not bear the responsibility of compensation, but in order to stabilize the social order to quell the dispute judgment hospital compensation 2000 yuan. The hospital did not accept, appeal. The court of second instance, the main guy Chen was due to his chest, abdomen was squeezed after acute hemorrhagic shock and death, is the result of traffic accidents. Two levels of medical malpractice appraisal committee that the hospital in the rescue did not violate the medical routine, the rescue measures taken, including the implementation of the transfer behavior in line with the requirements of medical operation, to exclude the possibility of Chen's death due to improper rescue by hospital staff. The direct cause of Chen's death was the traffic accident, and the medical staff was neither intentional nor negligent. Therefore, the hospital should not be liable for damages, and should not be liable for compensation.
The trial of medical disputes should pay attention to several issues
A medical dispute case to determine
Medical service contract is a medical institution and the patient on the mutual rights and obligations of the contract, but also the medical institution and the patient dispute basis. In the patient due to the fault of medical institutions or health care personnel and damage, there is a breach of contract, tort liability competing phenomenon. Contract law gives the parties the right to choose. The Regulations on the Handling of Medical Accidents set out to pursue tort liability. Article 1 of the Supreme People's Court's Notice on Trial of Civil Cases of Medical Disputes with Reference to the Regulations on the Handling of Medical Accidents stipulates that the provisions of the General Principles of Civil Law shall be applied to medical compensation disputes arising from causes other than medical accidents. First, the affirmation of tort law remedies, and second, "for reasons other than medical malpractice" includes in addition to the pursuit of tort liability, but also can be pursued for breach of contract liability. The parties can choose the tort or breach of contract. In the April 1, 2008 implementation of the "civil case provisions" in the medical dispute provides two kinds of cases: one is in the first part of the personality right disputes within the right to life, the right to health, the right to set up under the right to medical damage disputes, it refers to the medical institutions in the diagnosis and treatment of care work, due to medical personnel diagnosis and treatment of negligence, which directly caused the patient's death, disability, tissue and organ damage resulting in dysfunction Accident caused by the aggrieved person's compensation disputes; Second, in the fourth part of the claim disputes within the service contract disputes under the establishment of the medical service contract disputes, which mainly refers to the medical institutions and patients in the exercise of contractual rights and the performance of contractual obligations in the process of disputes arising from the contract. Therefore, in trial practice, according to the parties to choose a different cause of action, respectively, to determine the cause of the case, if the parties chose the breach of contract, the cause of the case should be determined as a medical service contract dispute; if the parties chose the tort, the cause of the case should be determined as a dispute over medical damages.