Medical malpractice compensation standard stipulates
1, medical expenses
"In accordance with the medical expenses incurred in the treatment of personal injury caused by medical accidents, the medical expenses shall be paid on the basis of credentials, but not including the primary medical expenses. If it is really necessary to continue treatment after closing the case, it will be paid according to the basic medical expenses. "
1. Medical expenses include registration fees, examination fees, treatment fees, (Chinese and western) medicine fees, hospitalization fees, nursing fees of medical institutions, etc. According to the medical expenses documents issued by legal medical institutions. According to Article 144 of the Supreme People's Court's Opinions on Implementing the General Principles of the Civil Law of People's Republic of China (PRC) (for Trial Implementation), treatment should generally be carried out in the medical institution where the medical accident occurred, and the cost of forced transfer without hospital approval or certificate is generally not compensated; If you buy drugs unrelated to the damage or treat other diseases without authorization, the expenses will not be compensated. After the patient is cured by hospital treatment, he should be discharged immediately if there is no need to be hospitalized again. If the patient refuses to leave the hospital without justifiable reasons, the expenses for continuing hospitalization shall be borne by the patient.
In addition, the Supreme People's Court's Interpretation on Several Issues Concerning the Trial of Personal Injury Compensation Cases by Electric Shock stipulates that medical expenses also include "other organ function training fees" and "appropriate beauty fees" for reference only.
2. "Primary medical expenses" refers to the medical expenses for patients to treat their own original diseases caused by non-medical accidents. It can be reviewed from two aspects: (1) Judging from the time when the medical accident occurred. The medical expenses before the medical accident are first-class medical expenses; (2) Judging by prescription drugs and treatment items. All medical expenses for treating patients' original diseases or injuries are primary medical expenses. However, the above principle is not completely correct. For example, taking time judgment as an example, medical expenses before medical accidents are undoubtedly the primary medical expenses. But the reverse is not inevitable, because after the medical accident, the two kinds of medical expenses are often mixed at the same time, that is, while treating the damage caused by the medical accident to the patient, they are also treating the patient's primary disease, especially when the patient's primary disease is serious and the medical accident only causes slight harm to the patient (such as the fourth-class medical accident). It is obviously unfair to divide all medical expenses after a medical accident by time. If there is any dispute, it can be defined according to the actual situation, and if necessary, it can be simply identified by the judicial appraisal department on medical expenses.
3. On the issue of continuing medical care. Because the personal injury caused by medical accidents to patients can not be completely cured in the settlement stage of medical accidents, the regulations stipulate the continuing treatment fee (also known as continuing medical expenses, expected medical expenses and second-phase medical expenses) as follows: "If it is really necessary to continue treatment after closing the case, it shall be paid according to the basic medical expenses."
First of all, by analyzing the legislative language, it can be understood that when solving the compensation for medical malpractice (that is, when closing the case), the patient's continuing medical expenses that have not yet occurred cannot be paid in a lump sum. Because the cost of continuing medical treatment refers to the patients with functional disorders who have left fixed signs after treatment, who really need to be treated again or whose injuries have not recovered, the future treatment cost cannot be determined because of the differences in patients' physique, illness, grade, technical level and hospital charging standards, and the estimation of any medical institution or appraisal department is inaccurate, which will inevitably harm the interests of both doctors and patients. Therefore, the law stipulates that the renewal fee is the idea after the case is closed;
Secondly, whether it is necessary to continue treatment should be based on the Suggestion of Medical Nursing Medicine for Patients with Medical Accidents in the Technical Appraisal of Medical Accidents by the expert appraisal group.
Third, the continuing treatment fee is calculated and paid according to the basic medical expenses. But at present, there is no specific scope and items of basic medical care in China. According to the "Regulations on Handling Medical Accidents 100 Question" compiled by the Department of Education, Culture and Health of the Legislative Affairs Office of the State Council, the Department of Legal Supervision of the Ministry of Health and the Department of Medical Administration of the Ministry of Health, it is explained: "1998, the State Council made the" Decision on Establishing the Basic Medical Insurance System for Urban Employees ",carried out the reform of the medical insurance system for employees and implemented the basic medical insurance for urban employees. Various localities have determined the service scope of basic medical insurance.
2. Lost time cost
"If the patient has a fixed income, it shall be calculated according to the fixed income reduced due to missed work. If the income is more than 3 times the average salary of employees in the previous year when the medical accident occurs, it shall be calculated according to 3 times; If there is no fixed income, it shall be calculated according to the average annual salary of employees in the previous year where the medical accident occurred. "
The calculation method of lost time is divided into two types according to whether the patient has a fixed income.
1, fixed income refers to legitimate income such as wages, bonuses, allowances and subsidies for special types of work. , should be made by the state organs, enterprises, institutions and social group work personnel on schedule, but due to medical accidents caused by medical delays and losses. Generally, the income certificate and payroll issued by the unit shall prevail, and the bonus shall be calculated based on the per capita bonus of the patient in the previous year, and the bonus tax threshold shall be limited. It should be noted that the income certificates issued by private enterprises such as sole proprietorship enterprises, partnerships, and limited companies with unsound finances, especially the income certificates proving that the patient's "fixed income" is more than three times the average annual salary of employees in the previous year, are not used as the basis for identification alone, but must be combined with the personal income tax payment certificate of the tax authorities and other materials.
2, no fixed income includes two types of people, one is engaged in agriculture, forestry, animal husbandry and fishery production of rural villagers; Second, there are street offices, township people's governments or relevant certificates, who engaged in some kind of labor before the medical accident and whose income can maintain a normal life, including contracted business households, urban and rural individual industrial and commercial households, migrant workers (casual workers, temporary workers) and family laborers. All of them are calculated according to the average annual salary of employees in the last year where the medical accident occurred.
In addition, if the patient is engaged in a second occupation according to law, the actual reduced income should be reasonably compensated. If the patient is a minor, it is not supported to claim compensation for lost time.
3. Identification of late working date. According to Article 143 of the Opinions of the Supreme Court on Several Issues Concerning the Implementation of General Principles of Civil Law, the date of missing work should be determined according to the actual damage degree and recovery status, with reference to the certificate issued by the treatment hospital or forensic identification. The date of missed work consists of two parts: the number of days of hospitalization and the number of days of rest after discharge issued by the treatment hospital. It is calculated from the date of the medical accident and will not be deducted in case of national legal holidays. After the treatment, those who refuse to leave the hospital without justifiable reasons or refuse to rest without relevant certificates will not be counted as lost time. If the medical accident causes the patient to be disabled, the lost time fee will no longer be calculated after the expert appraisal group issues the medical accident technical appraisal book, that is, the lost time fee will no longer be compensated after the disability is identified.
3, hospital food subsidies
Calculated according to the standard of food allowance for general staff of state organs where the medical accident occurred. "
According to the original intention of judicial interpretation, "general staff of state organs" refers to staff whose administrative level is below "division level". The standard of food allowance for business trips shall be stipulated by all localities. For example, the food allowance for business trip in Chongqing is 12 yuan/day.
4. Escort fee
"If a patient needs to be accompanied by a special person during hospitalization, it shall be calculated according to the average annual salary of employees in the previous year where the medical accident occurred."
The word "escort fee" is more scientific than the "nursing fee" in the Measures for Handling Traffic Accidents promulgated by 199 1 the State Council, because there are also nursing activities in the medical activities carried out by medical personnel. The calculation period of the escort fee is limited to the "hospitalization period" of the patient after the medical accident, and the average annual salary of the employees on the ground where the accident occurred is calculated on a daily basis.
It should be pointed out that, as an administrative regulation, the "one-size-fits-all" calculation method of the escort fee stipulated in the Regulations is different from that stipulated in Article 145 of the Opinions of the Supreme Court on Several Issues Concerning the Implementation of General Principles of Civil Law, which stipulates: "Hospital approval is limited to the salary standard of local ordinary temporary workers." When people's courts try cases of medical malpractice damages, how to apply them remains to be clarified by the Supreme Court.
5. Living allowance for the disabled
"According to the level of disability, according to the average annual living expenses of residents in the place where the medical accident occurred, compensation will be paid for 30 years from the month of disability; However, those over 60 years old shall not exceed 15 years old; Over 70 years old, no more than 5 years. "
"Average living expenses" refers to the per capita living consumption expenditure of households announced by the statistics department of the people's government where the accident occurred. For example, Chongqing announced in 2002 that the average annual living expenses of residents were 5767 yuan. However, when forwarding the annual average living expenses data of residents, the traffic accident handling organ shall clearly stipulate when to use the data to deal with traffic accidents, so as to facilitate operation. It is suggested that health administrative organs can learn from it.
According to the newly published Classification Standard of Medical Accidents (Trial) issued by the Ministry of Health, "The disability level corresponding to medical accidents in this standard is 1 B to 3 E", the disability living allowance can only be calculated if the medical accidents identified as above level 3 constitute 10 or above, and the compensation items cannot be calculated if the medical accidents are above level 4.
The 30 years, 15 years and 5 years specified in this item are only the maximum years for assuming the responsibility of disability benefits, and not all medical accidents must be compensated for 30 years, 15 years or 5 years. The specific number of years or the amount of compensation should be determined according to the patient's disability level:
(1) The first-class medical accident (first-class disability) is calculated as 30 years, that is,100%;
2) The secondary medical accident (secondary disability) is calculated as 90% of the primary disability. The calculation formula is: the average annual living expenses of residents ×30 years× 90% (disability grade coefficient, the same below);
(3) The secondary medical accident (tertiary disability) is calculated as 80% of the primary disability;
(4) 70% of secondary and tertiary medical accidents (four-level disability);
(5) The secondary medical accident (level 5 disability) is calculated as 60%;
(6) Three-level medical accidents (six-level disability) are calculated at 50%;
(7) Three-level medical accidents (seven-level disability) are calculated at 40%;
(8) Three-level and three-level medical accidents (eight-level disability) are calculated at 30%;
(9) Three-level medical accidents (nine-level disability) are calculated at 20%;
(10) Class Ⅲ E medical accident (level 10 disability) is calculated as 10%.
Because the "Regulations on Handling Medical Accidents" assumes that the average life expectancy in China is 75 years (5 years longer than the average life expectancy assumed in the Measures for Handling Road Traffic Accidents), the "over 60 years old" in this item does not exceed 15 years old; For those who are over 70 years old, it shall not exceed 5 years ",which can be calculated according to the formula of 1 decreasing year for each person over 60 years old: 6 1 year for one year old, 15 years for 62 years old, and 13 years for them.
6. Disability appliance fee
"If it is necessary to configure compensation functional appliances, it shall be calculated according to the cost of popular appliances with the certificate of medical institutions."
Disabled appliances include artificial limbs, wheelchairs, hearing AIDS, artificial eyes, dentures, wigs, glasses and so on. Among them, artificial eyes and wigs have no functional compensation, but they are recognized by the general concept of society and still belong to disabled appliances. When calculating the cost, it includes both the purchase cost and the installation cost of appliances for the disabled. The expenses are calculated according to the price of popular instruments in the market, and can also refer to the provisions on the scope of reimbursement of medical insurance for urban workers. At the same time, the cost of replacement in the future should be calculated according to the service life and average life (75 years old) of disabled appliances.
The so-called "popular household appliances" refer to household appliances widely used in the same variety, which are generally limited to domestic products and do not include luxury goods. The Supreme People's Court also stipulated in the Interpretation on Several Issues Concerning the Trial of Cases of Compensation for Personal Injury Caused by Electric Shock that the cost of disabled appliances should be calculated according to the cost of domestic common appliances.
The "medical institution certificate" mentioned in this item does not refer to the certificate of the medical institution where the medical accident occurred, but also includes the certificate of the medical institution above the county (city, municipal district) where the patient received medical accident damage treatment. When there is a dispute between doctors and patients about whether to configure appliances for the disabled, it can be comprehensively determined according to the medical suggestions for patients in the conclusion of medical accident appraisal.
7. Funeral expenses
"It is calculated according to the funeral expenses subsidy standard stipulated by the accident place."
At present, local civil affairs and financial departments have stipulated specific standards for funeral expenses. For example, the standard of funeral expenses in Chongqing is 1.500 yuan. According to the explanation of the drafter of the Regulations on Handling Medical Accidents, funeral expenses include "the expenses of keeping the corpse, operating the corpse, cosmetic surgery, cremation and shroud." As for the increased expenses of the funeral of the deceased, no compensation will be given.
8. Dependent's living expenses
"If the deceased or the disabled lose their ability to work and have actual dependents before they lose their ability to work, it shall be calculated according to the minimum living standard of the residents in their domicile or place of 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; Over 70 years old, no more than 5 years. "
1. According to the "Traffic Accident Disability Assessment Standard" of the Ministry of Public Security, the "disability of the disabled" in this item should be limited to the degree of disability above level 5 (including level 5), that is, if the medical accident is identified as level 2 disability, it can be identified as disability.
2. "People without working ability" includes both minors without working ability and those who have lost their working ability due to old age, illness and disability. They can't get economic income by working. However, if they are unemployed, laid off or unwilling to work and do not meet the conditions for determining their dependents, this expense should not be calculated.
3. When determining the maintenance person, the affected party shall provide proof of maintenance relationship, and relevant certificates and vouchers issued by relevant departments such as labor security, household registration and civil affairs according to law. When the health administrative organ and the people's court consider it necessary to handle the dispute, they shall request notarization.
4. The living expenses of the dependents shall be borne by those who have the obligation to support them, and the deceased or disabled persons who have lost the ability to work shall only bear their due share. In other words, medical institutions only compensate the deceased or disabled people who have lost their ability to work for that part of the expenses. For example, Party A and Party B each have a child aged 10, and Party A died due to a medical accident. When calculating the living expenses of the dependents, Party B's share of expenses should be deducted, that is, divided by two. The calculation formula is: (minimum monthly living allowance for residents × 12 months× 6 years) ÷2 people. When the parents of the deceased or disabled become dependents, the share of support should be determined by the number of parents' children (including illegitimate children, stepchildren and adopted children). When calculating the living expenses, N children should be divided by N.
5. For the dependents over 60 years old, the years of support are still calculated according to the increase 1 year and decrease 1 year over 60 years old (see the section of "Disability Living Allowance" in this article).
9. Transportation costs
"According to the actual needs of the patients, the transportation expenses shall be paid by credentials."
Including reasonable transportation expenses necessary for transfer to hospital for treatment. Generally, it depends on the patient's condition, injury type and local traffic conditions. However, unnecessary transportation expenses paid by patients for intentional consumption should not be included in the scope of compensation.
10, accommodation fee
According to the standard of travel accommodation allowance for general staff of state organs in the place where the medical accident occurred, the payment shall be calculated on the basis of the evidence. "
Accommodation fee refers to the support for patients who can't be hospitalized or live at home because of transfer for treatment and examination. It should be pointed out that the "voucher payment" here is not based on the amount in the accommodation invoice, but only shows that the patient does have the voucher to implement the accommodation and calculate the number of days of accommodation. No matter whether the invoice amount is high or low, the travel accommodation allowance is only paid according to the number of days of accommodation. For example, the current standard in Chongqing is 30 yuan/person/day.
1 1, mental damage compensation
"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; If you are sick or disabled, the compensation period shall not exceed 3 years. "
Mental damage consolation money refers to the psychological or physical pain caused by medical accidents, and the comfort given by patients and their close relatives in the form of money payment. The Supreme People's Court's Interpretation on Several Issues Concerning Determining the Liability for Compensation for Spiritual Damage in Civil Tort stipulates that when a natural person's personal rights such as life, health, body, name, portrait, reputation, honor, personal dignity and personal freedom are illegally infringed, he may claim compensation for mental damage according to law. The Regulations on Handling Medical Accidents does not list "death compensation" in the compensation items, but directly stipulates "compensation for mental damage", which conforms to the principles of civil law and judicial interpretation, and its name is more reasonable. Because "death compensation" is actually the compensation for mental damage to the relatives of the deceased.
If a patient has the right to claim compensation for mental damage after death, he must be a close relative of the deceased. Article 7 of the Supreme People's Court's Interpretation on Several Issues Concerning Determining the Liability for Compensation for Spiritual Damage in Civil Tort stipulates: "If a natural person dies due to tort, ... if the spouse, parents and children of the deceased bring a lawsuit for compensation for mental damage to the people's court, their spouses, parents and children shall be listed as plaintiffs; If there is no spouse, parents or children, other close relatives may file a lawsuit and list other close relatives as plaintiffs. " According to article 12 of the Supreme People's Court's Opinions on Implementing General Principles of Civil Law, close relatives include spouses, parents, children, brothers and sisters, grandparents, grandchildren and grandchildren. Therefore, in the absence of close relatives of the deceased, others may not claim compensation for mental damage.
The compensation for mental damage is the same as the living allowance for the disabled, and each case is not counted as 6 years or 3 years. There is no need to give every close relative of the deceased a sum of mental damages. When calculating the specific years, it can be determined according to the patient's original disease status, the degree of medical negligence responsibility, the economic ability of medical institutions to take responsibility, the local average living standard and other factors. For the disabled, you can also master the principle of 1-4 disability compensation for 3 years, 5-8 disability compensation for 2 years, and 9- 10 disability compensation 1 year. Otherwise, it would be unfair if there is no difference between level 1 disability and level 10 disability.
In addition, according to Article 5 1 of the Regulations on Handling Medical Accidents, the transportation expenses, lost time expenses and accommodation expenses required by the close relatives of patients who participated in handling medical accidents and the spouses and immediate family members of patients who participated in funeral activities shall be calculated according to the above-mentioned relevant regulations, but the number of people who calculated the expenses shall not exceed two.
The sum of all expenses calculated in items (1) to (1 1) above is the total loss caused to patients by medical accidents. But calculating all the losses does not mean that all medical institutions will compensate. The specific amount of compensation should be determined according to the degree of responsibility of medical institutions in medical accidents. Article 36 of the Interim Measures for Technical Appraisal of Medical Accidents promulgated by the Ministry of Health stipulates that the degree of responsibility for medical negligence in medical accidents is divided into four types:
(1) Full responsibility means that the damage consequences of medical accidents are completely caused by medical negligence.
(2) The main responsibility means that the damage consequences of medical accidents are mainly caused by medical negligence, and other factors play a secondary role.
(3) Secondary liability means that the damage consequences of medical accidents are mainly caused by other factors, and medical negligence plays a secondary role.
(4) Minor liability means that most of the damage consequences of medical accidents are caused by other factors, and medical negligence plays a secondary role.
Therefore, when determining compensation, it should be divided according to the fault responsibility of medical institutions: if medical institutions are fully responsible, they will bear100% of all losses; Take the main responsibility and bear 60%-90% of all losses; Take secondary responsibility, and bear10%-40% of all losses; Those who are slightly responsible shall bear all the losses.
Summary: calculation formula
1. Compensation amount for medical expenses = medical expenses incurred (excluding primary medical expenses)+expected medical expenses.
2. Compensation amount for lost time = lost time × income standard (fixed income of patients reduced due to lost time)
3. Hospitalization food subsidy = hospitalization time × food subsidy standard for general staff of state organs in the place where the medical accident occurred.
4. The amount of compensation for the escort fee = the number of days of escort × the number of escorts × the annual average salary of employees on the ground where the medical accident occurred.
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