Seeking legal protection information for doctors' rights and interests

1, doctors can protect their rights from the following aspects according to the Tort Liability Law and the Physician Law. First of all, the right to provide evidence and suggestions for autopsy. If serious consequences are caused to the patient or the patient dies in the medical process, the doctor has the right to suggest autopsy evidence. If the patient's family doesn't know the patient's cause of death and the doctor insists that he is not at fault, the doctor has the right to suggest an autopsy of the deceased to prove that the medical behavior is not at fault. If the patient does not agree, the doctor has the right to ask the patient to sign and bear the responsibility of not providing evidence because he is unwilling to perform autopsy, and invite a third party to witness. Secondly, inform the right of confirmation. Doctors should clearly inform patients of their condition, examination items, medication, treatment costs, etc. The doctor has the right to ask the patient to confirm what he said. The patient's waiver of the right to inform and confirm will bury hidden dangers in medical disputes, and doctors are in a passive position in litigation. Third, the right to personal safety. When a medical dispute occurs, patients and their families lose their minds, besiege and beat medical staff, causing harm to medical staff, medical staff should dare to apply the law and investigate the criminal and civil liability of patients. Finally, when patients use medical disputes as an excuse to slander the hospital, spread distorted remarks, and the media listen to the patient's side of the story, and the report is seriously inaccurate, which has caused serious negative impact on medical staff and the hospital, the hospital should request the health administrative department and the court to order the patient and the relevant media to stop the reputation infringement, eliminate the impact and apologize. Therefore, safeguarding the legitimate rights and interests of doctors requires the care of the party and the government, the understanding and support of the society for doctors, and more importantly, doctors should dare and be good at using the law to safeguard their legitimate rights and interests. 2. Patients' awareness of rights protection is increasing day by day, but when medical students' rights are violated, their awareness of rights protection is relatively weak, which is mainly manifested in either passive avoidance or obeying the arrangement of leaders when medical disputes occur. If the leader does not approve of safeguarding rights, no matter what form of infringement the doctor suffers, he can only admit that he is unlucky and let the medical trouble infringe on the dignity and personal safety of the doctor. The law stipulates that citizens' personal and property safety and personal dignity are protected from infringement. As citizens, doctors should also learn to protect their rights by law. 3. The responsibilities of both parties are not clear, and the service contract relationship between patients and medical institutions is obvious. The simplest medical service contract should be that the patient pays the hospital, and the hospital diagnoses and provides drugs for the patient or takes other measures to cure the patient's pain. If the patient pays the money, but the hospital does not cure the patient, what is the responsibility of the hospital? According to the agreement of the diagnosis and treatment contract, the hospital should bear the responsibility for breach of contract, and whether the hospital is at fault has not been asked. If the hospital causes undue damage to patients, it should also bear the corresponding civil liability for damages. Only in this way can the fairness and equality of both sides be reflected. In other words, as long as the hospital fails to fulfill its obligation to treat patients according to the contract, it should bear the corresponding liability for breach of contract, and it does not necessarily require the doctor's diagnosis and treatment behavior to constitute a medical accident. The hospital's responsibility to patients is first of all the responsibility for breach of contract; If the hospital causes other injuries to patients in the process of diagnosis and treatment, it should also bear the corresponding liability for compensation. There should be two ways to pay compensation. One is that the consequences of injury and the way to bear the responsibility are clearly foreseen and agreed in the contract, and the hospital can determine its responsibility according to the contract. The other is that there is no agreement on the consequences of injury in the contract. At this time, the hospital should bear the liability for damages, which should belong to the special tort liability in civil law, that is, the burden of proof, that is, on the hospital side. Relevant experts pointed out that there are too many constraints on doctors now, and doctors feel that they are walking on thin ice. I used to just want to cure the patient, but now I am timid, for fear of accidentally becoming the defendant. On June 5438+February 3, 2003/KLOC-0, the first medical officer in the history of the First People's Hospital of Foshan City, Guangdong Province, finally closed the case after more than 8 years. This is a medical dispute caused by a pregnant woman who gave birth in the First People's Hospital of Foshan City, Guangdong Province starting with 1995. This medical dispute is not only the first medical malpractice lawsuit in the history of the First People's Hospital of Foshan City, Guangdong Province, which was established more than 100 years ago, but also the first time that Chinese doctors and hospital administrators became defendants. Only then did the doctor realize that if he was not careful in his medical work every day, he might become the defendant in the future. Medical disputes and medical litigation have become unavoidable practical problems for every hospital administrator, including medical students. Later, repeated medical disputes proved the seriousness of this problem. In medical disputes, patients are usually in a weak position. In these embarrassing "tragedies", many patients and their families are either at a loss, helpless and too dependent on the hospital when facing the powerful hospital, or take some inappropriate extreme measures in anger, burning their legitimate rights and interests, resulting in a silent tragedy. The above-mentioned behaviors often lead to the loss of favorable conditions for patients to defend their rights, and ultimately their legitimate rights and interests cannot be safeguarded. Because medical disputes are professional and technical, the status of both parties to the dispute is unbalanced, and the information based on the characteristics and habits of the medical industry is closed, the road of patients' rights protection is often bumpy and tortuous. In order to make the majority of patients calmly and objectively face the hospital in a strong position after the dispute, actively use legal weapons and choose appropriate professional lawyers to defend their rights, based on the identity of professional lawyers and accumulated rich experience in handling medical disputes, the author expounds the key issues involved in safeguarding rights before and during litigation. First, copy and save the files in time. Before and after the doctor-patient dispute, whether for consultation or later litigation, the most important link is to fully grasp the medical records and related materials. First of all, we should master the medical records as timely and comprehensively as possible. Medical record is an objective record of the occurrence and development of patients' diseases and the diagnosis, examination and treatment of patients by medical staff, and it is also an important documentary evidence in litigation. When there is a dispute between doctors and patients about the diagnosis and treatment behavior of patients, medical records play an irreplaceable role in determining whether there is medical negligence in medical institutions. Medical records are divided into objective medical records and subjective medical records. Objective medical records refer to the data that objectively record the patient's condition, examination and treatment results, including outpatient medical records, inpatient medical records, temperature sheets, doctor's orders, laboratory sheets (inspection reports), medical imaging examination data, special inspection consent, operation consent, operation and anesthesia records, pathological data, nursing records and other medical records stipulated by the health administrative department of the State Council; Subjective medical records refer to the records of medical staff's subjective opinions on patients' condition and treatment, which reflect their subjective understanding of patients' diseases and their diagnosis and treatment, as well as their subjective motives for implementing medical behaviors, including death case discussion records, difficult case discussion records, superior doctors' rounds records, consultation opinions and course records. Before the promulgation of the new Regulations on Handling Medical Accidents, patients, family members and even lawyers could not consult and copy medical records in advance because of the lack of clear provisions in laws and regulations, which made patients and their families in a very passive position in the process of handling disputes between doctors and patients. However, in practice, medical institutions often deliberately modify, conceal or even destroy medical records. The new Regulations on Handling Medical Accidents clearly stipulates the right of patients to copy medical records and the obligation of hospitals to cooperate, but the exercise of this right is limited to some extent. According to the regulations, patients only have the right to copy or duplicate their objective medical records, and have no right to request to copy or duplicate their subjective medical records. In other words, patients have the right to copy or duplicate medical records, but the scope of medical records to be copied or duplicated is strictly limited, and the course records cannot be copied. The course record objectively records the patient's treatment, which is an important evidence to prove whether the medical staff's diagnosis and treatment measures are appropriate. Excluding it from the scope that patients' medical records can be copied or copied is really not conducive to patients' rights protection. From a legal point of view, this provision is unreasonable and unfair! However, in order to balance the weak position of patients, the regulations also stipulate that subjective medical records should be sealed and unsealed in the presence of both doctors and patients, but it is not clear whether sealing subjective medical records is the obligation or optional right of medical institutions, and patients should make full use of this right. The only shortcomings of this regulation are the lack of operability in practice and the patients' negative inaction to the hospital-not sealing, sealing on the spot, and the sealing form is not strict. , often helpless, for fear that the medical record will be modified! Therefore, lawyers suggest that when patients exercise this right, it is best to invite notaries, lawyers and other places to intervene in order to effectively safeguard their legitimate rights and interests; Or apply to the people's court for evidence preservation and medical records before or during litigation. Second, choose the way to solve disputes. After obtaining medical records and other information, patients can conduct preliminary research if they involve disputes between doctors and patients. The best way is to consult medical experts and professional lawyers to find out whether it is a medical accident, whether the doctor is at fault, and whether it constitutes a medical tort. After a dispute with a hospital, there are three basic ways to solve the dispute: 1, negotiate with a doctor and sign an agreement; 2. Apply to the administrative department of health; 3. Bring a lawsuit to the people's court. 1, negotiate with the doctor and sign the agreement. At present, medical institutions are mainly state-owned institutions, and the person in charge of medical institutions has no specific authority to make compensation before and after the identification of medical accidents. The situation in which doctors and patients reach an agreement is mainly limited to the identification of medical accidents or the hospital has other ideas. In this way, it is unlikely that patients' rights and interests will be fully safeguarded, and patients' weak position cannot be balanced in the process of dispute resolution. If at this stage, patients can invite professional lawyers to intervene to make up for their weak position in this process. We should be soberly aware that consultation is the first contest between doctors and patients, and it is also a key link before entering the litigation stage. On the one hand, professional lawyers make hospitals weigh the interests of this dispute and accept the reasonable demands of patients through the elaboration and analysis of laws and facts; On the other hand, professional lawyers will actively collect and preserve evidence according to the specific circumstances of the negotiations, laying a solid evidence foundation for the next litigation. At the same time, after the doctor-patient dispute occurs, don't act rashly, blindly "settle it", and analyze it objectively to avoid regret in the future. Judging from the current legal provisions and practice in China, there are two forms of exemption from civil liability: non-litigation exemption and agreement exemption. The so-called exemption from prosecution means that the victim or the relevant parties do not sue the court to investigate the legal responsibility of the actor, and the legal responsibility of the actor has actually been exempted. The so-called agreement exemption means that the victim and the offender reach an agreement through consultation within the scope permitted by law and agree to exempt the offender from liability. Legal liability refers to some unfavorable legal consequences that the actor should bear because of illegal behavior, breach of contract or legal provisions. In judicial practice, the parties voluntarily reach a settlement agreement on personal injury, and if one party goes back on his word and brings a lawsuit to the people's court, his right to appeal should be protected. However, if he can't prove that the agreement is invalid or revocable at the time of conclusion, he shall consider the agreement valid and both parties shall perform it. Therefore, patients should be cautious in solving problems "privately"! 2. Apply to the health administrative department. Articles 37 and 38 of the Regulations on Handling Medical Accidents stipulate that the parties concerned shall submit a written application to the health administrative department of the people's government at the county level where the medical institution is located. The health administrative department of the people's government at the county level where the medical institution is located shall, within 7 days, transfer the death of the patient and the medical accident that may belong to the second level or above to the health administrative department of the people's government at the prefecture level for handling. The basis of the health administrative organ's handling is the appraisal conclusion of the medical malpractice appraisal Committee of the medical association. A written application shall be filed within one year from the date when the party concerned knows or should know that his health has been damaged. The provisions of Articles 49, 50 and 51 of the Regulations on the Handling of Medical Accidents, in which there is no death compensation as stipulated by other laws and regulations; At the same time, the Regulations on Handling Medical Accidents also stipulates that those who do not belong to medical accidents will not be compensated. This kind of relief can't avoid the unfavorable factors that the hospital is in a strong position in the process of dispute resolution, and at the same time, we must face up to the inherent limitations of the Regulations on the Handling of Medical Accidents in safeguarding patients' rights and interests. In view of the above characteristics and the principle of "the minority is subordinate to the majority" adopted by the Medical Association, patients should have an objective understanding of the possible conclusions of medical malpractice appraisal. If it is not an accident after appraisal or the patient does not apply for medical malpractice appraisal, and the patient has reason to think that the doctor is at fault and should be liable for compensation, there is no need to entangle too much in the conclusion of medical malpractice appraisal. He should consult a professional lawyer in time and choose to bring a lawsuit to the people's court. Otherwise, patients may fall into a more passive litigation situation. 3. Bring a lawsuit to the people's court. At present, medical malpractice identification is not the premise of bringing a lawsuit to the people's court for medical compensation disputes. The burden of proof of patients focuses on the consequences of damage (disability grade, death, etc. ) and medical relations (medical records, medical bills, etc. ). The Notice of the Supreme People's Court on the Trial of Civil Cases of Medical Disputes with Reference to the Regulations on Handling Medical Accidents stipulates that other medical compensation disputes caused by reasons other than medical accidents shall be governed by the provisions of the General Principles of Civil Law. According to "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation", in litigation, the appraisal conclusion of the Medical Accident Appraisal Committee of the Medical Association is only one kind of litigation evidence, and it can only be used as valid evidence and the basis for determining the liability of medical units after cross-examination. Among them, according to the General Principles of the Civil Law and relevant laws, the people's court can support the patient's claim for compensation for death. Through the intervention of lawyers and other experts, patients and hospitals are in the same position under the protection of open, just and fair judicial procedures, and the legitimate rights and interests of patients will be fully and fairly safeguarded through litigation. After clarifying the characteristics of the above solutions, patients should resolutely choose a more suitable solution according to their own situation, so as to avoid delaying time on unnecessary issues, increasing the difficulty of obtaining evidence and causing passive litigation. Third, correctly treat "inversion of burden of proof" and "inversion of burden of proof" On the surface, it seems that patients can win the lawsuit as long as they can prove that they have been in the hospital and have damaged the facts. In fact, many patients blindly sue without complete requirements, which eventually leads to the consequences of losing the case. Therefore, after encountering disputes between doctors and patients, we cannot blindly rely on the inversion of the burden of proof. We should consult a lawyer or invite a professional lawyer to intervene, collect and preserve evidence before litigation or prepare corresponding evidence when prosecution, and do a solid job in evidence work in litigation. On April 1 2002, "Several Provisions on Evidence in Civil Proceedings" (hereinafter referred to as "Provisions") provided an operable judicial basis for handling such cases. Item (8) of Article 4 of the Regulations stipulates that "medical institutions shall bear the burden of proof for infringement litigation caused by medical actions, and there is no causal relationship between medical actions and damage results, and there is no medical fault", which clarifies the burden of proof of both doctors and patients. According to the regulations, the inversion of burden of proof is applicable to tort litigation caused by medical behavior. The so-called inversion of the burden of proof refers to a distribution form in which the other party who denies the claim or part of the facts bears the burden of proof for the litigation request put forward by one party. In the tort litigation caused by medical behavior, the patient should bear the burden of proof for the fact that he suffered damage and the fact that he received medical treatment. Medical institutions should bear the following burden of proof: (1) There is no causal relationship between the damage results of patients and the medical behavior of medical institutions; (2) There is no medical fault in medical institutions. This special distribution of burden of proof better embodies the principles of fairness and good faith, and is conducive to protecting the legitimate rights and interests of patients. How to deal with the "identification problem" in the dispute between doctors and patients, because many disciplines involved in the dispute between doctors and patients are highly professional, after entering the litigation channel, the identification of key issues such as "medical fault", "causality" and "damage degree" in the case is highly professional, and the medical records, diagnosis and medical literature provided by the parties are only based on the knowledge and social experience of the judge. At this time, it will involve "identification"-a rather "key" problem! Many patients think that identification is medical malpractice identification! In fact, these misunderstandings are simply explained. In principle, appraisal can be divided into judicial appraisal and technical appraisal of medical malpractice: judicial appraisal refers to the activities of the people's court in the process of litigation, or at the request of the parties and other participants in litigation, in order to find out the facts of the case, to appoint or entrust people with specialized knowledge to inspect, appraise and evaluate specialized issues; The technical appraisal of medical malpractice is based on the transfer of patients, hospitals or health administrative departments, and is carried out by local medical associations. Its main purpose is to strengthen the management and supervision of doctors and other medical behaviors. The difference between them is that (1), judicial expertise must be appointed or entrusted by the court; The technical appraisal of medical malpractice can be entrusted by both parties, or transferred by the health administrative department to the medical association for appraisal; (2), judicial expertise can be identified by the medical association, can also be identified by other appraisal institutions; The technical appraisal of medical malpractice can only be organized by medical associations; (3) The conclusion of judicial expertise organized by non-medical associations is mainly fault identification, which does not involve medical malpractice; The technical appraisal of medical malpractice must involve the question of whether it belongs to medical malpractice or not. Therefore, the identification of doctor-patient disputes entering the litigation stage can generally be divided into medical fault identification and damage degree identification. Whether appraisal is needed and what kind of appraisal is needed are generally determined according to the opinions of the parties and specific cases. In practice, most cases belong to medical malpractice personal injury compensation disputes. If identification is needed, medical fault identification and damage degree identification shall be carried out. The focus of controversy in such cases is often "whether there is a fault in medical behavior and whether there is a causal relationship with the consequences of damage", which is also a difficult problem in determining the facts of the case and the responsibilities of the parties. When this problem is solved, the substantive handling of the case is basically over. Medical fault identification is a litigation activity in which the people's court entrusts specialized institutions and people with specialized knowledge to analyze, evaluate and judge whether there is a causal relationship between the damage result of the patient's complaint and the fault of the medical party, so as to provide a scientific basis for the judge to judge the case fairly. Article 25 of the "Regulations" clarifies the general principle of starting the appraisal procedure, that is, in addition to the investigation and collection of evidence by the people's court as stipulated in Article 15 of the "Regulations", the appraisal shall be conducted according to the application of the parties concerned, and the people's court shall generally not entrust the appraisal according to its functions and powers. Under this principle, it should generally be caused by the parties' application for appraisal. In the case that the disputed facts of the case are unknown and need to be appraised, according to the general rules of the burden of proof, if the party with the burden of proof fails to apply for appraisal within the prescribed time limit without justifiable reasons, or fails to pay the appraisal fee or provide relevant materials in advance despite applying for appraisal, it shall bear the legal consequences of failing to provide evidence according to the provisions of the second paragraph of Article 25 of the Regulations. V. Patients' Rights and Obligations in the Doctor-patient Relationship As a weak party in the doctor-patient relationship, patients should be aware of their rights and obligations. According to China's Constitution, General Principles of Civil Law, Law on Protection of Consumers' Rights and Interests and Regulations on Handling Medical Accidents, as well as some departmental regulations and medical operation norms of the Ministry of Health, patients' rights are very extensive, mainly including the right to life and health; Right of personality (right of privacy, name, portrait and reputation); Property right; The right to fair medical care; The right to seek medical treatment independently (including choosing medical institutions and medical personnel); Right to know and consent. Patients have the right to know the condition, treatment measures, medical staff, etc. , and the treatment action taken by the hospital must obtain the consent of the patient or his family in advance; The right to consult and copy medical documents; Supervision right; Right of claim; The right to request withdrawal. Members who may affect the just and fair appraisal of medical accidents have the right to withdraw; Have the right to appeal after a dispute; After entering the litigation procedure, he enjoys the litigation rights as a party. At the same time, in the process of receiving medical services, patients should abide by and perform the following obligations: first, abide by medical rules and regulations and accept the corresponding management of the hospital; Second, respect the personality and work of medical staff; Third, actively cooperate with medical services and strictly follow the doctor's advice for treatment; The fourth is the obligation to accept compulsory treatment. Patients with infectious diseases should take the initiative to receive compulsory treatment in accordance with the requirements of laws and regulations; Fifth, the obligation to pay medical expenses; Sixth, the obligation to prevent the damage from expanding. After medical accidents or medical errors, patients should actively take measures to avoid the expansion of damage results, otherwise the expanded patients' losses will not be supported by law. The compensation items involved in the dispute between doctors and patients with intransitive verbs The personal injury compensation involved in the dispute between doctors and patients can be divided into general damage compensation, disability compensation and death compensation. The specific scope of compensation involved: the victim suffered personal injury, medical expenses and reduced income caused by missed work, including medical expenses, missed work expenses, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies and necessary nutrition expenses; If the victim is disabled due to injury, the necessary expenses incurred due to the increase of daily needs and the income loss caused by the loss of working ability, including disability compensation, disability AIDS, living expenses of dependents, and the necessary rehabilitation expenses, nursing expenses and follow-up treatment expenses actually incurred due to rehabilitation nursing and continuing treatment; If the victim dies, the compensation obligor shall also compensate the funeral expenses, living expenses of the dependents, death compensation and other reasonable expenses such as transportation, accommodation and lost time. In addition, the victim can also claim compensation for mental damage. The amount of compensation for mental damage is determined according to the following factors: the degree of fault of the infringer; Specific information such as means, occasions and behaviors of infringement; Consequences caused by infringement; Profits of the infringer; The economic ability of the infringer to take responsibility; The average living standard of the court of appeal. Where laws and administrative regulations clearly stipulate compensation for mental damage, the provisions of laws and administrative regulations shall apply. If the prescribed nursing period, assistive devices distribution period and disability compensation distribution period are exceeded, and the medical expenses are insufficient, and it is necessary to increase the living expenses of the dependents, the victim may also bring a lawsuit to the people's court again. The above is a brief analysis of the key issues encountered in the rights protection of doctor-patient disputes. I hope patients can make preparations as soon as possible after the disputes occur. Considering that disputes between doctors and patients are highly professional, practical and operable, it is best for patients to seek or invite the help of professional lawyers and other third parties, which is the best policy to safeguard their legitimate rights and interests and the original intention of this paper. Satisfied, please adopt …