The handling of medical malpractice disputes has been one of the hot issues concerned by all walks of life for many years. At the same time, medical malpractice disputes have always been a difficult point for people's courts to accept personal injury compensation cases. It will help to correctly handle medical disputes, protect the legitimate rights and interests of both doctors and patients equally according to law, and realize social fairness and justice. This paper analyzes and discusses several issues on how to deal with medical damage compensation disputes, and puts forward the author's views and opinions in order to make contributions to the realization of social fairness and justice.
The constitution of civil liability for medical disputes, that is, the constitutive elements of liability, includes: there must be damage facts, there must be illegal acts or technical errors, there must be causal relationship between damage facts and illegal acts, and there must be faults. In addition, this paper also discusses the inversion of burden of proof in medical tort compensation disputes.
First, the composition of civil liability for medical disputes
Most medical disputes belong to tort civil disputes. To determine whether to bear civil liability, the premise is to determine whether the damage consequences caused by medical personnel meet the elements of civil liability stipulated in the civil law. The so-called constitutive requirements refer to the necessary conditions that constitute infringement and should bear civil liability for compensation. These necessary conditions must be met at the same time in order to bear the liability for compensation. Therefore, when we talk about the civil liability of medical disputes, we must first grasp the constitutive elements of liability. This is a necessary condition for bear civil liability.
(1) There must be damage facts.
Damage fact refers to the objective fact that a certain behavior causes the victim's property right or personal right to be damaged, resulting in property or non-property losses. It includes both material loss and mental loss, which is embodied in the property loss caused by the death, disability, aggravation of illness and prolonged treatment time of the victim, as well as the actual damage caused by the above situation to the victim and his family, such as mental anxiety, sadness and distress. At present, there are no explicit provisions in various relevant laws and regulations on whether to compensate mental damage in medical disputes, but there have been cases of mental damage compensation in judicial practice, and from the development trend, mental damage will be paid more and more attention.
As a constituent element of tort civil liability determination, damage facts should have the following characteristics:
1, the legality of the damaged rights and interests
That is, the infringer infringes on the legitimate rights and interests of others protected by law. The "rights and interests" that are not protected by law, even if they are "infringed" and cause certain consequences, are not damage facts that should bear civil liability for compensation. For example, compulsory isolation treatment for AIDS patients may lead to the consequences of reduced income and temporary increase in pain, but at this time, the law does not protect their right to move freely in society. Although it has been damaged, it is allowed by law, so this "damaging fact" is not a damaging fact that should be held responsible.
2, remedial damage behavior
First, it is the necessity of relief, which not only has a great influence on the victims, but also needs relief. Failure to provide relief will damage some basic principles in civil law, such as the principle of fairness. Therefore, both the General Principles of the Civil Law and the Measures for Handling Medical Accidents stipulate that medical accidents that cause great property losses and serious personal injuries should be remedied. However, there is no need to remedy very small property losses or minor personal injuries. For example, when a nurse gives an infusion to a child, she repeatedly inserts a vein, which causes the child to be partially congested and cry for a long time. Parents demand compensation for their children's pain loss, but the health administrative department and the court do not support it. Second, the possibility of remedy. In other words, the losses that must be remedied according to the law can only be remedied, and the losses beyond the scope of the law, even if they really exist, cannot be remedied. For example, the income from missed work caused by medical accidents, living allowance for the disabled, funeral expenses for the deceased, etc. Can be remedied by law. On the contrary, the law does not stipulate the relief scope and methods of "gas collection fee", "pain fee" and "youth loss fee", so although there is infringement, it cannot be the fact of damages.
3, remedial damage behavior
All damage facts that constitute civil liability for medical disputes must have occurred and really exist. Hypothetical, fabricated and unscientific results are damage to the facts. In medical dispute cases, sometimes patients have only partial symptoms, but there is no corresponding physical examination and no positive changes in auxiliary examinations. This situation should be regarded as having no harmful consequences in most cases of physical damage, and only in a few cases of mental damage can it become harmful consequences. For example, the patient is Yang, a 20-year-old unmarried woman. Orthopedic surgery for binocular strabismus. Postoperative correction index and vision were normal. A year later, he complained of headache, but after many examinations, no organic lesions were found. Appraised by psychiatrists, the patient's so-called headache is actually a "hypochondriac disease", which is not the result of eye correction at all.
The fact of damage is the foundation and basis of the legal relationship of damage compensation. Without damaging the facts, there is no civil liability for compensation. This is very different from criminal responsibility. Criminal law also punishes attempted behavior (that is, it has not caused harmful consequences). For example, when a doctor gives an appendectomy to a female patient who hates herself, he is prepared to take this opportunity to ligate the patient's fallopian tube and make her infertile. The assistant found in the action that the plot failed. Although there is no damage to the results, it has already been socially harmful, which is an attempted crime and should bear criminal responsibility. Damage compensation has no civil liability for attempted damage. An attempt to damage or negligent injury, but in fact no damage has been caused, is not enough to bear the liability for damages. In terms of liability for tort damages in medical disputes, as long as there is no damage fact, there is no need to bear civil liability.
(two) there must be illegal acts or technical errors.
1, illegal act
In medical dispute cases, the word illegal should be broadly understood, that is, it not only violates the laws and regulations of the state, but more importantly violates the rules and regulations and technical operating procedures formulated by the health administrative department and medical units. In fact, in the early practice, medical malpractice should bear civil liability. In most cases, it is because medical personnel have violated the rules and regulations or technical operation procedures, not the national laws and regulations. For example, a 3-year-old sick child went to a township health center for treatment because he was scalded by boiling water. Dr. A refused to treat burns on the pretext that the township health center did not have the conditions to treat burns, so the parents of the sick children had to go to Dr. B. Dr. B treated burns effectively with Arnebia oil and asked his family to come back for a follow-up visit the next day. On the third day of follow-up, it happened that I was on duty. After my family told me that the treatment with Zicao oil was effective, Dr. A conveniently took out a bottle of medicine from the medicine box and applied it to the injured part of the sick child without looking. The sick child began to cry, and my family reminded me: "Did you take the wrong medicine?" Doctor A not only refused the examination, but also asked his family members to hold the sick child down, spread gauze on the injured face and send all the remaining 100 ml medicine. Then walk away. A few minutes later, the sick child developed cyanosis, then went into shock and died after being rescued. It turns out that Dr. A mistook "Lai Su" for Zicao oil. In this case, it is illegal for doctors to violate the pre-medication inspection system. On the other hand, if the medical staff's behavior is legal, that is, it does not violate laws, regulations and technical specifications, it is not necessary to bear the liability for compensation. For example, removing a diseased kidney from a patient with renal cancer leads to organ loss of the patient. But it can prolong the life of patients. At this time, there is no violation of laws and regulations, and there is no problem of bearing civil liability.
Illegal behavior includes two forms: action and omission. Behavior refers to the behavior that the actor actively implements the behavior prohibited by laws or rules and regulations. For example, the precedent of Dr. A is an illegal act in the form of behavior, because according to the rules and regulations of the hospital, drugs must be checked before being given to patients, and it is forbidden to use drugs rashly without checking. On the positive side, Doctor A's behavior is against the rules and regulations. Illegal acts that belong to behavior include wrong needle, wrong blood transfusion, wrong knife, etc.
Inaction refers to the behavior of the actor who passively fails to implement laws or rules and regulations. For example, a patient with leg fracture caused by a traffic accident was in a state of moderate shock due to excessive blood loss, but the attending doctor did not give rescue measures such as dressing, hemostasis, blood transfusion and oxygen delivery, and forcibly transferred the critically ill patient to another hospital on the grounds that there was no orthopedics in our hospital, and the patient died on the way to the hospital. This kind of behavior of being irresponsible to patients, prevaricating and refusing treatment, and not doing one's duty is an act of inaction that violates rules and regulations. Because the administrative department of health stipulates that there is a "first diagnosis responsibility system", that is, the hospitals and doctors who receive treatment first, no matter whether the patients they receive belong to the hospital or the undergraduate treatment object, whether they have the conditions for cure or not, they should take necessary measures as far as possible, and they should not transfer patients to other hospitals or departments without any treatment for any reason. In this case, the attending doctor violated the responsibility system of first consultation, and should have taken first aid measures such as dressing and hemostasis (any hospital can do it), but he passively did not take it. This is an illegal act in the form of omission. Other illegal acts that belong to inaction include absent without leave, ignoring the condition reported by the patient, forgetting to carry out the doctor's advice, not observing the patient on time according to the nursing plan and so on.
The premise that omission is illegal is that the actor has some obligation required by law, and it is illegal to fail to fulfill this obligation. This specific obligation can be directly stipulated by law. For example, the guardian has specific guardianship duties for the ward, and it is illegal to fail to perform his duties. It may also be a specific post or business need. For example, when the police are working, they must stop illegal activities. If they don't stop it, it's an illegal act of inaction. The doctor's illegal inaction falls into this category, that is, the doctor's profession determines that he has a specific obligation to save the patient, and passive failure to save the patient is illegal inaction. It should be noted that the specific obligation determined by a specific position must exist when the obligor is on duty, and there is no such obligation in his spare time. For example, when a doctor encounters a patient with a heart attack while traveling on vacation, the doctor originally had the skills of resuscitation with his bare hands, such as heart massage, but he failed to rescue him. This is only an unfulfilled moral obligation and does not constitute a legal omission. If the doctor is a group health care doctor, it is not illegal to treat patients, because doctors have specific legal obligations at this time.
In practice, some behaviors are illegal on the surface, but not illegal in essence, but should be advocated. Theoretically, this is called stopping illegal activities. Generally speaking, it is because of some factors that the illegality of this kind of behavior is cut off and it cannot be considered illegal. The behaviors that belong to this category are: ① the behavior of post authorization. In order to protect public interests and citizens' legitimate rights and interests, the law allows some people with special responsibilities to "damage" other people's property and person, and they are not responsible for the resulting damage. Doctors are such people with special responsibilities. For example, a patient with a thigh stab wound was rushed to the hospital. After investigation, the femoral artery was broken and the patient was in a state of hemorrhagic shock, and his life was dying. There is no vascular anastomosis in this hospital, and it is difficult to control massive bleeding by hemostasis measures such as ligation, and there is no superior hospital nearby. The attending doctor made a decisive decision and amputated the limb for the patient, saving the patient's life. Although this case caused the "injury" of the patient's limbs, the doctor who performed his duties has the right to take this measure, which is considered legal in law. Similar examples include: firefighters demolished neighboring houses to prevent the fire from spreading; The police shot and wounded the criminal who might escape. It should be noted that the actor during the period of post authorization must bear such responsibilities according to law, and the damage consequences cannot be avoided or mitigated by other methods, which is necessary for performing his duties. (2) the behavior promised by the victim. That is, the victim allows others to infringe on his rights and interests. The victim's promise belongs to the nature of contract. As long as it does not violate laws and regulations, the medical staff's behavior can no longer be illegal. However, it should be pointed out that the commitment of legal victims is subject to strict conditions. First of all, the victim promised to allow others to infringe upon the rights only his own disposable rights, such as blood donation and organ donation. If I don't have the right to dispose of it, I can't promise. For example, parents can't promise the doctor to put their stupid son to death because parents have no right to dispose of their son's right to life. Secondly, the content of the promise shall not be prohibited by law. For example, it is a proper expression to admit the possible complications and sequelae of surgery and allow others to cause minor harm to themselves. However, entrusting others to help themselves commit suicide and promising others to kill or seriously injure themselves violates the prohibitive provisions of the criminal law, which means that it cannot take effect.
2. Technical error
Among the behavioral elements of civil liability for medical malpractice, one thing is different from other behavioral elements of civil liability, that is, under the condition of technical assistance, as long as the doctors involved have technical mistakes, such as the surgeon taking organs by mistake because of unclear understanding, even if the doctors have not violated the law, that is, they still have to bear civil liability for compensation. This is determined by the special profession of doctors. Doctors are professional technicians who are directly related to people's life and health. Therefore, the state has set strict conditions for the qualifications of doctors. Doctors must have improper qualifications when practicing, and they must also pay special attention to their own diagnosis and treatment behavior beyond other professions. Only by putting such high demands on doctors' behavior can people's lives, health and safety be fully guaranteed. If you don't pay special attention and cause technical mistakes, the doctor will be responsible. Therefore, there is no need for doctors to commit illegal acts to bear civil liability. Technical mistakes and illegal acts are the elements of concurrent acts that bear the liability for compensation.
(3) There must be a causal relationship between the damage fact and the illegal act.
Causality is a philosophical concept. Simply put, the phenomenon that causes a certain phenomenon is called the cause; And the phenomenon caused by this phenomenon is called the result. The relationship between objective phenomena and causes is the causal relationship of things. Causality is one of the necessary conditions to determine the civil liability of medical disputes. If there is no causal relationship between the doctor's illegal behavior and the patient's damage facts, then the doctor and the hospital will not be responsible whether other conditions are met or not. For example, patient Chen, a 68-year-old woman, was treated for a fracture of the distal radius and was treated by the attending doctor. Because the patient can't stand the pain and the reduction is not ideal, splint reduction is adopted. A few days later, the doctor found that the patient had taken off the splint and fixed it by himself, and the fracture end was seriously dislocated, so he was now reset under the X-ray machine, but the patient still refused to cooperate because of the pain. The doctor advised the patient to go to a big hospital for treatment, but the patient didn't go. Results The fracture healed abnormally, which affected the function of wrist. During the treatment of this case, the attending doctor never recorded the medical record. According to the relevant regulations of the Ministry of Health, not recording medical records is an illegal operation, which actually makes it difficult for the later technical appraisal, and both the attending doctor and the hospital are responsible for it. However, from the perspective of causality, the abnormal healing of the patient's fracture is not directly caused by the lack of medical records, that is, there is no causal relationship between the doctor's illegal behavior and the patient's damage consequences, and the hospital does not bear the liability for damages.
As a necessary condition to determine the civil liability of medical staff, causality must be clearly identified when dealing with medical disputes, but it is quite difficult to identify it in practice. This requires dispute handlers and parties to disputes not only to master the basic knowledge of causality, but also to understand the various types of causality in practice and the problems that should be paid attention to. Only in this way can we ensure that the handler can solve the dispute fairly and reasonably; Ensure that the parties can effectively protect their legitimate rights and interests.
(4) There must be a fault.
Fault is the subjective psychological attitude of the actor to the harmful results caused by his own behavior. In the general legal concept, fault includes intentional and negligent forms, but in medical disputes, the fault of medical personnel is only one of them, because intentional injury to patients constitutes the crime of intentional injury or intentional homicide in criminal law, which no longer belongs to the category of medical disputes. Negligence in medical disputes also includes negligence and overconfidence. For example, patient Kang Nan, 30 years old. See a doctor because of abdominal pain, bloating, nausea and vomiting, and endless defecation. During the physical examination, the doctor only asked the patient to retreat his pants to the lower abdomen, listen casually and knock a few times in the abdomen. Without a comprehensive physical examination, it was diagnosed as "acute complete intestinal obstruction" and informed the operating room for operation. During the operation, it was found that the patient had right abdominal femoral hernia, and the small intestine had entered the hernia sac and could not return, resulting in strangulation. Because the left umbilical cord originally taken according to the diagnosis incision of intestinal obstruction is far from the hernia sac, only another incision was made to repair the hernia, which caused undue damage to the patient. This kind of misdiagnosis can be completely avoided if the doctor in this case can be serious and responsible and conduct a comprehensive physical examination according to the regulations. This case was an oversight. Due to subjective negligence, the hospital concerned should bear civil liability for this case.
Second, the application of inversion of burden of proof in medical tort compensation disputes
There are two completely different views on the principle of civil liability for medical disputes at home and abroad. One is the principle of fault liability, that is, the determination that the parties to a medical incident should bear civil liability must be based on the existence of fault. Take responsibility only if there is a fault; No fault, no responsibility. The other is the principle of no-fault liability, that is, as long as there is damage, the civil liability is directly determined without asking whether the doctor involved is at fault. People who hold this view compare medical service to highly dangerous surgery and think that the object of medical service is human life and health, which is determined by the extreme preciousness of human life and health. Medical service is a high-risk occupation, and the nature of this occupation determines that practitioners should have special duty of care. Therefore, as long as it violates this obligation and causes losses to patients, regardless of whether there is fault or not, it is necessary to bear the responsibility.
At present, people who hold the view of the principle of no-fault liability abroad are on the rise, and some countries have also made flexible provisions on the principle of fault liability in the practice of solving medical disputes, such as the principle of "facts prove themselves". Although it has not completely replaced the principle of fault liability, it also admits that there are exceptions in some cases. In our country, most people still hold the viewpoint of fault liability principle, and the judicial practice of dealing with medical disputes also implements the principle of fault liability. Its legal basis is Article 106 of the General Principles of the Civil Law: "A citizen or legal person who violates a contract or fails to perform other obligations shall bear civil liability (Paragraph 1). Citizens and legal persons who infringe upon the property of the state or the collective or the property or person of others due to their faults shall bear civil liability (Paragraph 2). There is no fault, but the law stipulates that it should bear civil liability and should bear civil liability (paragraph 3). " The first two paragraphs of this article stipulate the principle of fault liability of civil liability, and the third paragraph stipulates no-fault liability. Medical disputes belong to tort damages disputes, which infringe on the "person" of others as stipulated in the second paragraph above, so the principle of fault liability should be applied. According to the third paragraph, there is no-fault liability only if the law clearly stipulates it. The General Principles of Civil Law only stipulates that no-fault liability applies to "high risk" and "environmental damage", excluding "compensation for medical tort damage". Therefore, it cannot be applied in determining the civil liability of such disputes.
The principle of imputation is closely related to the burden of proof. The essence of implementing the principle of fault liability is that the victim-patient bears the burden of proof, that is, providing evidence to prove that the injuring party is at fault in the hospital. If there is no evidence to prove that the injuring party is at fault, the injuring party shall not bear civil liability. The essence of implementing the principle of no-fault liability is that the injuring party bears the burden of proof, that is, the so-called "inversion of the burden of proof", that is, at this time, the victim does not need to provide evidence to prove that the offender is at fault first, on the contrary, the offender provides evidence to prove that he is not at fault first. As long as the victim puts forward the facts of death, disability, dysfunction and so on. There is no need to prove that the fact is caused by the fault of the medical staff, so it can be presumed that the medical staff is at fault. If medical personnel want to be exempted from responsibility, they need to prove that their actions conform to rules and regulations, technical specifications and medical principles, or prove that the damage consequences of patients are caused by patients themselves or other emergencies. If the evidence is insufficient to prove it, it shall bear civil liability. It can be seen how important the burden of proof is to both parties to the dispute.
China's civil procedure law has established the burden of proof system of "whoever advocates gives evidence", that is to say, in the process of civil litigation, if one party expresses that he enjoys certain rights, such as the right to claim compensation, he must provide evidence to prove that he really enjoys this right; If the other party wants to deny the other party's claim, it must prove that the other party should not enjoy this right with evidence. It can be said that the process of litigation is a process in which one party "argues" with evidence and the other party "refutes" with opposite evidence, which goes on and on until the facts are clarified. However, the particularity of the medical damage compensation case itself makes the patients who claim their rights have great obstacles in presenting evidence. First of all, medical services are characterized by strong professionalism and high technology content. In general, it is impossible for patients and their families to have enough medical knowledge, and it is also difficult to have a detailed understanding of the rules and regulations of medical units and the routine of diagnosis and treatment. So there is no evidence to prove the fault of medical staff in diagnosis and treatment. Secondly, there are medical records in diagnosis and treatment, and medical records are an important basis for identifying medical negligence. However, according to the relevant regulations of the Ministry of Health, patients and their families have no right to consult medical records. Third, the patient can't testify when he is dead. Even if he is not dead, in a coma and critically ill, his family members can't participate in the whole treatment process, so it is unrealistic for them to give evidence.
Based on these obstacles in the victim's proof, I think that the principle of "inversion of burden of proof" should also be implemented in medical dispute damage compensation cases, that is, as long as the injured patient has damage facts such as death and disability, and thus makes a claim for damage compensation, the relevant hospital should first prove that it is innocent, or prove that the damage is caused by the patient's own reasons or inevitable external factors (such as medical accidents and natural transfer of diseases), and should bear the responsibility for damage compensation. It is not unfair to the hospitals concerned to determine the burden of proof in this way, because they have evidence and they are professionals. If there is no fault, it is not difficult to prove. This is not to say that they add unnecessary burdens. In the past, the principle of inversion of burden of proof has not been implemented in practice. In fact, doctors have to prove that they are not at fault. For the injured party, there is no need to prove it reluctantly, just wait for the doctor to prove that it has a fault report. After the doctor proves his innocence, the patient needs to prove the falsity of the doctor's evidence. Only in this way can we truly protect the legitimate rights and interests of patients and embody the principle of fairness in the general principles of civil law.
reference data
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