According to the degree of personal injury to patients, medical accidents are divided into four levels:
First-class medical accident: causing death or serious disability of the patient;
Secondary medical accident: moderate disability and severe dysfunction caused by organ and tissue damage;
Third-class medical accidents: causing mild disability of patients, organ and tissue damage leading to general dysfunction;
Four-level medical accidents: other consequences that cause obvious personal injury to patients.
Specific grading standards shall be formulated by the health administrative department of the State Council.
Chapter III Technical Appraisal of Medical Accidents
Article 20 The administrative department of health shall submit the technical appraisal of medical malpractice to the medical association responsible for the technical appraisal of medical malpractice after receiving the report of major medical negligence of medical institutions or the application for handling medical malpractice disputes put forward by the parties involved in medical malpractice disputes. Medical malpractice disputes need to be identified through consultation between doctors and patients, and the medical association responsible for technical identification of medical malpractice shall be entrusted by both parties to organize the identification.
Twenty-first municipal local medical associations with districts and county (city) local medical associations directly under provinces, autonomous regions and municipalities directly under the Central Government are responsible for organizing the first technical appraisal of medical malpractice. The local medical associations of provinces, autonomous regions and municipalities directly under the Central Government are responsible for organizing re-appraisal.
When necessary, the Chinese Medical Association can organize technical appraisal of medical malpractice disputes that are difficult, complicated and have great influence in the whole country.
Article 22 If a party refuses to accept the conclusion of the first technical appraisal of medical malpractice, he may apply to the health administrative department where the medical institution is located within 15 days from the date of receiving the conclusion of the first appraisal.
Twenty-third medical associations responsible for organizing technical appraisal of medical accidents shall establish an expert database.
The expert database consists of medical and health professionals who meet the following conditions:
(1) Having good professional quality and professional ethics;
(two) employed by medical and health institutions or medical teaching and scientific research institutions and held senior technical positions in the corresponding professions for more than 3 years.
Forensic doctors who meet the requirements specified in Item (1) of the preceding paragraph and have advanced technical qualifications may be employed to enter the expert database.
The medical association responsible for organizing the technical appraisal of medical accidents may employ medical and health professionals and forensic doctors to enter the expert database in accordance with the provisions of these regulations, and is not restricted by administrative regions.
Twenty-fourth medical malpractice technical appraisal shall be organized by the medical association responsible for organizing medical malpractice technical appraisal.
Experts from related professions who participated in the technical appraisal of medical accidents were randomly selected from the expert database by both doctors and patients under the auspices of the Medical Association. Under special circumstances, the medical association may, according to the needs of technical appraisal of medical accidents, organize both doctors and patients to randomly select experts from relevant professions from the expert database established by other medical associations to participate in appraisal or inquiry.
Medical and health professionals and forensic doctors who meet the conditions stipulated in Article 23 of these regulations have the obligation to be employed into the expert database and undertake the technical appraisal of medical accidents.
Twenty-fifth expert appraisal group to carry out technical appraisal of medical accidents, the implementation of collegiate system. The number of experts in the expert appraisal group is odd, and the experts involved in major disciplines shall generally not be less than half of the members of the expert appraisal group; Involving the cause of death, disability level identification, it should be randomly selected from the expert database to participate in the expert appraisal group.
Twenty-sixth members of the expert review team shall withdraw in any of the following circumstances, and the parties may also apply for their withdrawal orally or in writing:
(1) Being a party to a medical malpractice dispute or a close relative of the party;
(2) Having an interest in the dispute over medical malpractice;
(3) Having other relations with the parties to the medical malpractice dispute, which may affect the impartial appraisal.
Article 27 The expert appraisal team independently conducts technical appraisal of medical malpractice according to medical and health management laws, administrative regulations, departmental rules, norms and practices of diagnosis and treatment and nursing, and uses medical scientific principles and professional knowledge to identify and judge medical malpractice, so as to provide medical basis for handling medical malpractice disputes.
No unit or individual may interfere with the technical appraisal of medical accidents, and may not threaten, induce, abuse or beat members of the expert appraisal team.
Members of the expert appraisal team shall not accept property or other benefits from both parties.
Article 28 The medical association responsible for organizing the technical appraisal of medical malpractice shall, within 5 days from the date of accepting the technical appraisal of medical malpractice, notify both parties to the medical malpractice dispute to submit the materials required for the technical appraisal of medical malpractice.
The parties concerned shall submit materials, written statements and defense related to the technical appraisal of medical malpractice within 10 days from the date of receiving the notice from the medical association. The medical malpractice technical appraisal materials submitted by medical institutions shall include the following contents:
(a) the original medical records such as the course records of inpatients, the discussion records of death cases, the discussion records of difficult cases, the consultation opinions, and the records of superior doctors' rounds;
(2) The original medical records of hospitalized patients, such as hospitalization records, temperature sheets, doctor's orders, laboratory tests (inspection reports), medical image examination data, special inspection consent, operation consent, operation and anesthesia records, pathological data, nursing records, etc.;
(three) the original medical records of emergency patients within the specified time;
(4) The sealed infusion, articles for injection, blood, medicines and other physical objects, or the inspection report of an inspection agency with inspection qualification according to law on these articles and physical objects;
(five) other materials related to the technical appraisal of medical accidents.
Outpatients and emergency patients with medical records in medical institutions shall have their medical records provided by medical institutions; Medical institutions have not established medical records, which are provided by patients.
Both doctors and patients shall submit relevant materials in accordance with the provisions of these regulations. If a medical institution fails to provide relevant materials truthfully in accordance with the provisions of these regulations without justifiable reasons, resulting in the failure of technical appraisal of medical accidents, it shall bear the responsibility.
Article 29 The medical association responsible for organizing the technical appraisal of medical malpractice shall organize the appraisal and issue a technical appraisal of medical malpractice within 45 days from the date of receiving the materials, written statements and defenses submitted by the parties concerned.
The medical association responsible for organizing the technical appraisal of medical accidents may investigate and collect evidence from both parties.
Thirtieth expert appraisal group shall carefully review the materials submitted by both parties, listen to the statements and arguments of both parties, and verify them.
Both parties shall truthfully submit the materials required for technical appraisal of medical accidents in accordance with the provisions of these regulations, and actively cooperate with the investigation. If any party refuses to cooperate and affects the technical appraisal of medical accidents, the uncooperative party shall bear the responsibility.
Thirty-first expert appraisal group shall, on the basis of clear facts and conclusive evidence, comprehensively analyze the patient's condition and individual differences, make an appraisal conclusion and make a technical appraisal of medical accidents. The appraisal conclusion is passed by more than half of the members of the expert appraisal group. The appraisal process shall be truthfully recorded.
The technical appraisal of medical malpractice shall include the following main contents:
(1) Basic information and requirements of both parties;
(two) the materials submitted by the parties and the investigation materials of the medical association responsible for organizing the technical appraisal of medical accidents;
(3) Description of the evaluation process;
(four) whether the medical behavior violates the medical and health management laws, administrative regulations, departmental rules and the norms and routines of diagnosis and treatment;
(five) whether there is a causal relationship between medical negligence and the consequences of personal injury;
(six) the degree of responsibility of medical negligence in the consequences of medical accident damage;
(seven) the level of medical accidents;
(eight) to provide medical nursing medical advice for patients with medical accidents.
Thirty-second measures for technical appraisal of medical accidents shall be formulated by the administrative department of health of the State Council.
Article 33 Any of the following circumstances does not belong to a medical accident:
(a) in an emergency, to save the lives of dying patients, take emergency medical measures, resulting in adverse consequences;
(2) A medical accident occurs in medical activities due to the patient's abnormal condition or special physique;
(3) Unforeseen or unforeseeable adverse consequences occur under the existing medical science and technology conditions;
(four) no-fault blood transfusion infection caused adverse consequences;
(five) due to the patient's delay in diagnosis and treatment, resulting in adverse consequences;
(6) Adverse consequences caused by force majeure.
Thirty-fourth technical appraisal of medical accidents, appraisal fees can be charged. If it is identified as a medical accident, the appraisal fee shall be paid by the medical institution; If it is not a medical accident, the appraisal fee shall be paid by the party applying for medical accident treatment. The appraisal fee standards shall be formulated by the competent price departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government in conjunction with the financial departments and health administrative departments at the same level.
Chapter IV Administrative Handling and Supervision of Medical Accidents
Thirty-fifth health administrative departments shall, in accordance with the provisions of these regulations and relevant laws, administrative regulations and departmental rules, make administrative treatment for medical institutions and medical personnel who have medical accidents.
Article 36 After receiving a report from a medical institution about a major medical negligence, the health administrative department shall not only order the medical institution to take necessary medical measures in time to prevent the damage from expanding, but also organize an investigation to determine whether it belongs to a medical accident; If it is impossible to determine whether it is a medical accident, it shall be submitted to the medical association responsible for the technical appraisal of medical accidents in accordance with the relevant provisions of these regulations.
Article 37 In case of a medical malpractice dispute, the parties concerned shall submit a written application to the administrative department of health for handling. The application shall state the basic information, relevant facts, specific requests and reasons of the applicant.
Within 1 year from the date when the parties know or should know that their health has been damaged, they may apply to the health administrative department for medical malpractice dispute settlement.
Thirty-eighth medical malpractice disputes, the parties to the health administrative department of the people's government at the county level where the medical institution is located to apply. If a medical institution is located in a municipality directly under the Central Government, it shall be accepted by the health administrative department of the district or county people's government where the medical institution is located.
Under any of the following circumstances, the health administrative department of the people's government at the county level shall transfer it to the health administrative department of the people's government at the next higher level within 7 days from the date of receiving the report of the medical institution or the application for handling the medical accident dispute:
(a) the patient died;
(two) more than two medical accidents may occur;
(3) Other circumstances stipulated by the health administrative department of the State Council and the health administrative department of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government.
Article 39 The administrative department of public health shall conduct a review within 10 days from the date of receiving the application for handling medical malpractice disputes, and make a decision on whether or not to accept it. In accordance with the provisions of this Ordinance, to be accepted, the need for technical appraisal of medical accidents, it should be within 5 days from the date of making the decision of acceptance, to submit relevant materials to the medical association responsible for technical appraisal of medical accidents and notify the applicant in writing; Do not meet the requirements of this Ordinance, shall not be accepted, and notify the applicant in writing, explain the reasons.
If a party disagrees with the conclusion of the first technical appraisal of medical malpractice and applies for re-appraisal, the health administrative department shall, within 7 days from the date of receiving the application, submit it to the local medical association of the province, autonomous region or municipality directly under the Central Government for re-appraisal.
Fortieth, if a party not only applies to the health administrative department for handling medical malpractice disputes, but also brings a lawsuit to the people's court, the health administrative department will not accept it; If the health administrative department has accepted it, it shall terminate the treatment.
Article 41 After receiving the medical malpractice technical appraisal certificate issued by the medical association responsible for organizing the technical appraisal of medical malpractice, the health administrative department shall review the qualifications, professional categories and appraisal procedures of the personnel participating in the appraisal; When necessary, an investigation can be organized to listen to the opinions of both parties to the medical accident dispute.
Forty-second health administrative departments, after examination, should be used as the basis for administrative handling and mediation of medical malpractice compensation for medical institutions and medical personnel who meet the provisions of these regulations; Upon examination, it is found that the technical appraisal of medical accidents does not conform to the provisions of these regulations, and a re-appraisal shall be required.
Article 43 If a medical malpractice dispute is settled by both parties through consultation, the medical institution shall report to the local health administrative department in writing within 7 days from the date of settlement through consultation, and attach an agreement.
Article 44 If a medical malpractice dispute is settled by mediation or judgment of the people's court, the medical institution shall, within 7 days from the date of receiving the effective mediation or judgment of the people's court, report in writing to the local health administrative department, and attach 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 regulations, report to the health administrative department of the State Council the situation of medical accidents in this area and the administrative handling of medical institutions and medical personnel who have suffered medical accidents according to law.
Chapter V Compensation for Medical Accidents
Article 46 Civil liability disputes such as medical malpractice compensation can be resolved through consultation between doctors and patients. Unwilling to negotiate or if negotiation fails, the parties may apply to the administrative department of health for mediation, or directly bring a civil lawsuit to the people's court.
Article 47 If both parties settle civil liability disputes such as medical malpractice compensation through consultation, they shall reach an agreement. The agreement shall specify the basic information of both parties, the cause of the medical accident, the level of medical accident recognized by both parties and the amount of compensation determined through consultation, and shall be signed by both parties.
Forty-eighth has been identified as a medical accident, the administrative department of health at the request of both parties to the dispute of medical accident, medical accident compensation mediation. Mediation should follow the principle of voluntariness of both parties, and the amount of compensation should be calculated in accordance with the provisions of these regulations.
If the two parties reach an agreement on the amount of compensation through mediation, a mediation agreement shall be made and both parties shall perform it; If mediation fails or one party reneges after reaching an agreement through mediation, the health administrative department will no longer mediate.
Forty-ninth medical accident compensation, should consider the following factors, determine the specific amount of compensation:
(a) the level of medical accidents;
(two) the degree of responsibility of medical negligence in the consequences of medical accident damage;
(three) the relationship between the consequences of medical accident damage and the patient's original disease status.
If it is not a medical accident, the medical institution shall not be liable for compensation.
Fiftieth medical accident compensation shall be calculated according to the following items and standards:
(1) Medical expenses: calculated according to the medical expenses incurred in treating personal injuries caused by medical accidents, and paid according to the evidence, but excluding the medical expenses of the primary disease. If it is really necessary to continue treatment after closing the case, it shall be paid according to the basic medical expenses.
(2) Lost time: if the patient has a fixed income, it will be calculated according to the fixed income reduced by his absenteeism, and if the income exceeds three times the average annual salary of the employees in the place where the medical accident occurred, it will be calculated according to three times; If there is no fixed income, it shall be calculated according to the average annual salary of employees on the ground where the medical accident occurred.
(3) Hospitalization food allowance: calculated according to the standard of food allowance for ordinary staff of state organs in the place where the medical accident occurred.
(4) Escort fee: If the patient needs special escort during hospitalization, it shall be calculated according to the annual average salary of employees on the ground where the medical accident occurred.
(5) Disability living allowance: according to the disability level and the average annual living expenses of residents in the place where the medical accident occurred, the maximum compensation is 30 years from the month of disability; However, those over 60 years old shall not exceed 15 years old; More than 70 years of age, not more than 5 years.
(6) Disability appliance fee: If it is necessary to configure compensation functional appliances due to disability, it shall be calculated according to the universal appliance fee with the certificate of medical institution.
(7) Funeral expenses: calculated according to the subsidy standard of funeral expenses stipulated by the place where the medical accident occurred.
(8) Living expenses of dependents: limited to those actually supported by the deceased or disabled before they lose their ability to work, and calculated according to the minimum living standard of residents in their domicile or residence. 16 years old, raised to 16 years old. Those who have reached the age of 16 but have no ability to work will be supported for 20 years; However, those over 60 years old shall not exceed 15 years old; More than 70 years of age, not more than 5 years.
(9) Transportation expenses: calculated according to the transportation expenses actually needed by patients, and paid by credentials.
(X) Accommodation fee: calculated according to the standard of accommodation allowance for general staff of state organs in the place where the medical accident occurred, and paid by credentials.
(11) Spiritual damages: calculated according to the average annual living expenses of residents in the place where the medical accident occurred. If the patient dies, the compensation period shall not exceed 6 years at the longest; Disabled, the compensation period shall not exceed 3 years.
Article 51 The transportation expenses, lost time expenses and accommodation expenses required for the close relatives of patients to participate in the handling of medical accidents shall be calculated with reference to the relevant provisions of Article 50 of these regulations, and the number of people who calculate the expenses shall not exceed 2.
If a medical accident causes the death of a patient, the transportation expenses, lost time expenses 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 people who calculate the expenses shall not exceed 2.
Fifty-second medical malpractice compensation costs, the implementation of a one-time settlement, paid by the medical institutions responsible for medical malpractice.