The facts of a legal case
Missed the opportunity of cesarean section and the newborn was severely asphyxiated.
On 201910128 15, Ms. Guo, who was pregnant for 38 weeks, felt a burst of abdominal pain and had a premonition that the baby was going to be born, so she went to Malipo County Maternal and Child Health Hospital to give birth. Hospital B-ultrasound examination showed that it was a single live fetus, with head position, umbilical cord around neck 1 circle, and less amniotic fluid. At the time of admission, the hospital advised Ms. Guo to give birth as easily as possible.
2065438+09191at 6: 40 on October 29th, Ms. Guo began to try to have a natural birth. At 8: 20, because the pain lasted for a long time, Ms. Guo asked the hospital to have a caesarean section. After the hospital examination, she was advised to continue giving birth. At 9: 09, Ms. Guo gave birth to a baby boy weighing 3 kg. At birth, the baby boy's face, lips, trunk and limbs were pale, the umbilical cord wrapped around his neck, amniotic fluid III, and feces were stained.
After the hospital cleaned the respiratory tract, chest compressions, sputum aspiration and other treatments, the baby boy could breathe spontaneously. However, due to severe asphyxia, on the same day 15 10, the baby boy was transferred to the neonatal department of this hospital for further treatment, and was diagnosed as severe asphyxia, neonatal hypoxic encephalopathy and aspiration pneumonia. The hospital carried out non-invasive ventilator-assisted breathing, anti-infection, anti-bleeding, improving circulation and other symptomatic support treatments, but ultimately the rescue was ineffective. 201654381October 1 1:30, the baby boy was declared clinically dead.
Ms. Guo and her husband, Mr. Tang, believe that the hospital delayed the best delivery opportunity, failed to take out the fetus by cesarean section in time, and failed to take symptomatic treatment measures for the newborn in time after delivery, resulting in the death of the child. The two filed a civil lawsuit with the court, requesting the court to order Malipo County Maternal and Child Health Hospital to compensate for medical expenses, nursing expenses, lost time, in-hospital food subsidies, nutrition expenses, funeral expenses, death compensation, transportation and accommodation expenses, mental damage compensation, and lawyer's agency fees. , a total of 900936.95 yuan.
judge
The hospital is fully responsible for compensation of more than 870,000 yuan.
After the court put the case on file, according to the plaintiff's application, Yunnan Judicial Appraisal Center appraised whether there was any fault and the degree of fault in the diagnosis and treatment of Ms. Guo and her newborn by Malipo County Maternal and Child Health Hospital. The appraisal conclusion is that there is a fault in diagnosis and treatment, which has a causal relationship with the damage consequences, and the responsibility ratio is full responsibility, that is, 100%.
Maternal and Child Health Hospital agrees to bear civil liability for compensation, but does not recognize nursing expenses. It believes that Mr. Tang, a nurse, is the husband of the parturient, and his salary was not deducted during the nursing period, which did not reduce his actual income. As public officials, Mr. Tang and Ms. Guo did not provide evidence to prove that their actual income was reduced due to missed work, and they did not recognize the lost time fee; There is no bill or evidence to prove the transportation and accommodation expenses; Spiritual consolation money should be considered according to the case and the average living standard of the place where it is located; The law does not expressly stipulate that there must be a lawyer, and the lawyer's fee is not necessarily related to the infringement and should not be compensated.
The court held that citizens' right to life is protected by law. Ms. Guo went to the Maternal and Child Health Hospital to give birth, and the two sides formed a doctor-patient relationship. Doctors should treat patients positively and properly. Both parties have no objection to the expert's opinion, and the court adopted it.
Paragraph 3 of Article 20 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that if the victim has a fixed income, the lost time fee shall be calculated according to the actual reduced income. If the victim has no fixed income, it shall be calculated according to his average income in the last three years. Article 21 stipulates that if the nursing staff has a fixed income, the nursing expenses shall be calculated with reference to the provisions on lost time.
During the nursing period, Mr. Tang's actual income did not decrease due to missed work, and Ms. Guo enjoyed statutory maternity leave during her childbirth, and her actual income did not decrease. Therefore, the court does not support the lost time and nursing expenses. Although the plaintiff did not provide a formal ticket for transportation and accommodation, combined with the fact that the plaintiff went to Kunming twice during the appraisal, the court decided to calculate four trips with reference to the passenger fee 180 yuan, totaling 760 yuan.
Spiritual consolation money should be comprehensively considered in combination with the degree of fault of the hospital and the damage consequences caused to family members or victims. In this case, the hospital was completely at fault, and Ms. Guo and Mr. Tang suffered great mental pain because of the loss of their first child. Claim for compensation of 5000 yuan for spiritual comfort, which is not too high, and support it.
This case is a medical damage liability dispute with certain professionalism and complexity, involving medical record review, medical appraisal and so on. It is also impossible to require the parties to complete the litigation entirely on their own. Therefore, the lawyer's fee belongs to the category of reasonable loss. According to the charging standard of lawyer service in Yunnan Province, the court supported the lawyer's agency fee of 37,800 yuan. Accordingly, the court ruled that Malipo County Maternal and Child Health Hospital compensated Ms. Guo for various losses totaling 875,438+0 and 376,438+0.3 yuan.
explain
Adopt behavior standards instead of result standards.
Li Jun and Sun Di, lawyers of Yunnan Tianwaitian Law Firm, said that obstetrics and gynecology is a department with high incidence of medical disputes, which occupies the first place in medical damage liability disputes all the year round.
Considering the high professionalism and high risk of medicine, China's laws adopt "behavior standard" instead of "result standard" when judging whether medical institutions are at fault in the process of diagnosis and treatment, that is, "whether medical personnel have fulfilled their duty of care appropriate to the medical level at that time and whether the medical behavior implemented conforms to the current medical routine" as the standard to judge whether medical institutions are at fault, rather than just paying attention to the quality of diagnosis and treatment results.
Article 55 of Tort Liability Law stipulates that "if medical personnel fail to fulfill their medical obligations corresponding to the medical level at that time, causing damage to patients, medical institutions shall bear the liability for compensation", which is the concrete embodiment of this jurisprudence.
In this case, the parturient had indications for cesarean section, but the doctor was negligent and did not notice the abnormality of the labor process. He has always suggested a natural birth, leading to the death of the newborn, and finally bear all the liability for compensation.