To sue a hospital, we must first determine which court to sue, that is, the jurisdiction of the court. Generally speaking, medical disputes are brought in the grass-roots courts at the county level. Unless the object of litigation is deliberately raised to tens of millions, it is possible to file a case in an intermediate court, but it is not worth the loss, because the court can't judge that much, and the parties have to pay a lot of legal fees.
Generally speaking, medical disputes are mostly under the jurisdiction of the court where the medical institution is located, which is legal jurisdiction, and the parties cannot choose, and the relationship between the local court and the medical institution is taboo for most patients.
However, many medical institutions, especially those across provinces and cities, should pay attention to the choice of court jurisdiction. To exaggerate, sometimes the choice of court jurisdiction determines the success or failure of a case.
The author worked as an intern in Jiangxi before going to Shanghai, and once received a medical dispute case caused by femoral neck fracture. After conservative treatment in the county hospital, the patient was transferred to a hospital in Shangrao for surgical treatment, and the surgeon said that the best treatment period was delayed. After discharge, the patient is ready to sue the local county hospital. After receiving the case, the author suggests to sue the hospitals in Shangrao city together, so that the case can be filed in Shangrao city and the jurisdiction of the county court can be avoided. However, the plaintiff was sincerely grateful for the operation in Shangrao Hospital and could not bear to put it in the dock. The author explained to him that this was just a litigation strategy and finally persuaded him. After receiving the litigation documents, the county hospital expressed its willingness to pay compensation and settle with the plaintiff.
Some time ago, the author received a consultation from a foreign patient. He failed to treat kidney calculi in a foreign hospital. He went to a hospital in Shanghai to see an expert. The expert pointed out that the operation in the local hospital failed, so he applied for identification in the local medical association. The result is that it does not constitute a medical accident. The patient asked the author what to do, and the author suggested that he sue the Shanghai hospital together with the local hospital, so that he could file a case in Shanghai, so that he could be identified in Shanghai, and the protection network of the local hospital would be broken, and the chances of winning the case would be greater.
The above is an attempt to win the medical lawsuit from the perspective of choosing the jurisdiction of the court.
Second, the choice of cause of action.
Because of the different attitudes towards identification and legal application, there is still the problem of choosing the cause of action in medical disputes, but the courts in different places handle it differently.
In Shanghai, no matter what cause of action is chosen, medical disputes are generally appraised by medical associations, and the Regulations on Handling Medical Accidents are applicable. In other places outside Shanghai, such as Beijing, you can choose medical malpractice or medical fault as the cause of action.
In fact, the meaning of medical disputes is not clear, the choice of cause of action can still be done, and sometimes it can determine the outcome of the case.
An old lady went to a hospital in Shanghai for intramedullary nail fixation after a fracture, and later had three operations, leaving behind sequelae such as loss of knee joint function. The patient thinks that the hospital is at fault in medical treatment, while the hospital thinks that the operation is justified. In order to get compensation, the patient stayed in hospital for six years. The patient's family found the author. After reading the materials, the author suggested that she should not be obsessed with the operation in the hospital, but should first look at the quality of the products implanted at the beginning, and then file a product infringement lawsuit. Although there is no record of implant fracture in the medical record, a careful look at the X-ray shows that one screw of the intramedullary nail is broken, and the information about the implant in the medical record is also incomplete. In addition, the author also noticed a detail, because the hospital told me that the intramedullary nail was imported and could be kept for life. After the second operation, the family specially asked the doctor to show it to them, but the doctor said that it had been lost and could not be found. Sure enough, after the author filed a product infringement lawsuit on behalf of the patient, the hospital had to bear the liability for compensation because it could not prove the formal source of the product.
Third, try to avoid medical identification.
In practice, technical appraisal of medical malpractice often lacks credibility and authority in patients' minds. After filing a medical lawsuit, patients will generally object to the medical appraisal of the medical association.
In places where the dual-track system of medical disputes is implemented, it is not difficult to bypass the medical association appraisal, but in places where all medical disputes are identified by the medical association (such as Shanghai), medical appraisal seems inevitable. But in fact, there are still loopholes to be drilled, that is, to find fault with medical records.
Because according to the regulations on the handling of medical accidents, if the medical records of the hospital are not true, the medical association can not make an appraisal. According to the rules of proof, the hospital bears the burden of proof for medical tort disputes. If the medical association doesn't appraise it, it means that the defendant can't give evidence and the defendant has to bear civil liability.
After receiving a medical dispute case, the plaintiff's preliminary evidence preservation work has been completed, the copied one has been copied, and the sealed one has been sealed. The work to be done in the next case is to see if the judge and the medical association can find clues from the medical records that cannot accept the expert opinion. This kind of work is difficult, not to say that judges and medical associations will definitely refuse to identify evidence such as altered medical records and inconsistent signatures, because it also involves the question of whether to "substantially modify". The author once encountered a case where the medical record was revised after judicial appraisal and the medical association was still appraising it.
As an agent, the lawyer's job is to combine the untruthfulness of medical records with the focus of controversy, indicating that the untruthfulness of medical records is likely to affect the appraisal.
For example, there is a case in which the patient died and an autopsy has been carried out, and the conclusion is unfavorable to the patient. After receiving the case, the author repeatedly looked through the medical records and found that there were many inconsistencies between the nursing records and the doctor's medical records. The handwriting of the nurse's signature in the nursing record is inconsistent. By comparing the medical records before and after, it was found that the nurses who were not in class also signed the nursing records. The judge investigated the nurses involved, and they had to admit fraud in the face of facts. After understanding these situations, the Medical Association sent a letter to the court requesting to terminate the appraisal, and the court ruled that the hospital should bear all civil liabilities.
If we can't "find another way" in the jurisdiction court, cause of action and medical association appraisal, we can only find a breakthrough around the medical appraisal of medical associations.
Fourth, read the medical records carefully.
There is no doubt that medical records are the king of evidence in medical litigation. It is of course the best policy to find out the falsehood of medical records so as to block the way for doctors to give evidence, but this kind of opportunity is not met in every medical dispute case.
What if there is no such opportunity? Only by reading the medical records carefully and honestly can we find the loopholes in the medical prescription, thus finding the authoritative medical literature and preparing the medical appraisal statement materials.
The author once represented patient Yan and a hospital in Shanghai in the case of medical damage compensation. It was through careful reading of medical records that the problem was discovered. As soon as the lawsuit was filed, the hospital gave up.
The patient was hospitalized for cardiac cancer, and the results of preoperative renal function examination were normal, and he died of acute renal failure after operation. The patient thinks that there is something wrong with the operation of the hospital, which leads to acute renal failure. However, the doctor believed that the patient's acute renal failure was a complication of surgery, and it was mentioned in the preoperative notification that both sides denied that there was a fault in medical behavior and could not negotiate.
At first glance, this lawsuit seems difficult to win. But I didn't give up, so I settled down and looked at the medical records carefully, reading every word from three laboratory sheets, doctor's orders, admission records, operation records and laboratory sheets.
The preoperative test sheet showed that the patient's urine test was normal, but after operation, urinary protein appeared and gradually worsened. Is it related to medication? The medicine given to patients after hospital operation is Yiqing.
The official drug name of the search is etimicin sulfate and sodium chloride injection. The problem is that the facts are clear, and the patient's renal function damage is caused by drugs. Yiqing (etimicin sulfate and sodium chloride injection) belongs to aminoglycoside antibiotics and has nephrotoxicity. After the patient developed acute renal failure, the doctor did not know that Yiqing belonged to aminoglycoside antibiotics.
The doctor was blinded by the wonderful name and didn't investigate what kind it belonged to at all. If you knew, you wouldn't continue to use it for a week before stopping taking the medicine after discovering that the patient's renal function was slightly damaged.
Fifth, choose the literature carefully.
It is reported that an old farmer finally won a medical lawsuit by studying medical books. In fact, many patients in medical litigation have the experience of consulting medical materials. The importance of medical literature is self-evident, but it does not mean that everyone without medical background can use medical research data as evidence.
Even if you read a certain amount of medical literature, you may have different views on information, which is also a difficult thing to identify. This is one of the reasons why medical litigation needs lawyers with medical background.
In a recent medical lawsuit, the patient was admitted to a hospital in Shanghai for surgery because of acoustic neuroma, which was operated by a well-known doctor. However, after the operation, the patient suffered from intracranial hemorrhage and coma, and was transferred to another hospital for extra-cerebral surgery, leaving the sequelae of hemiplegia. The patient negotiated with the doctor, and the doctor said that there might be intracranial hematoma after operation, and there was no violation of medical routine. The negotiation was fruitless.
The author carefully consulted the literature. There is an article that the bleeding in acoustic neuroma surgery is caused by improper operation by the operator. The writer is a well-known expert in this city. The author demonstrated that there was medical negligence on the part of the medical staff, and the hospital later agreed to settle it through consultation.
Six, pay attention to the correctness of the appraisal procedure.
Many patients do not believe in the appraisal of the medical association and psychologically reject this procedure. In fact, we should attach great importance to the procedural rights recognized by medical associations.
In the case of Gao died of food suffocation in a hospital in Shanghai, the autopsy confirmed that the patient died of food suffocation, and the result of expert discussion was a medical accident. After entering the appraisal procedure, there is a link composed of appraisal experts. The medical association believes that the patient died in a mental hospital, and the psychiatrist is the main candidate. However, the author believes that although the patient is a mental patient, he has a cold and high fever, and the doctor invited a doctor from a comprehensive medical college for consultation. Death has little to do with mental illness, and it is obviously unfavorable for patients to be psychiatrists. Therefore, on behalf of the patient, the author asked the expert to be a general internal medicine expert, and the result was characterized as a medical accident.
In addition, in the appraisal procedure, there is also the right to apply for the withdrawal of experts and the right to make statements during appraisal, which should be paid attention to.
Seven, looking for loopholes from the unfavorable evaluation
Due to well-known reasons, the technical appraisal of medical malpractice is likely to be unfavorable to patients. Once the unfavorable appraisal conclusion comes out, it is certainly better if we can strive for judicial appraisal. If it is impossible to conduct a forensic re-examination, don't completely think that there is no hope, and try to find out the loopholes from the unfavorable appraisal.
The common method is to use the different cognition of judges and experts on negligence and causality to find a breakthrough from the opinions of experts. In the initial stage of medical association appraisal, some terms such as "deficiency" and "defect" often appear in appraisal analysis opinions, and the judge just turns these terms into legal faults. After this move was discovered by experts, there were few "fox tails" and few "proviso" in the appraisal and analysis opinions of the Medical Association. In this way, it is necessary to find out the flaws in the appraisal from the appraisal analysis opinions of the appraisal report and the lines of the previous "diagnosis and treatment summary".