In order to carry out the "I do practical things for the people" legal publicity campaign in depth, Han Tao, deputy director of the Civil Division 1 of Xicheng Court, was invited to attend a symposium of the department directors of Beijing Anorectal Hospital, and spoke on the theme of medical dispute prevention and handling , and explained in-depth the new provisions and new concepts of on medical damage liability in the Civil Code, and received a warm response. This event is also one of the series of Beijing-France Tour Lecture Hall activities.
Deputy President Han Tao introduced the origin of the doctor's obligation to inform, the provisions of Article 1219 of the Civil Code, and the current content of the doctor's obligation to inform, and sorted out the historical context based on cases.
Next, let’s learn about it together!
00 years ago, in other countries, cases of doctors' obligations began to appear in
in the early 120th century , and a case occurred in the United States. A patient went to the hospital for surgery due to spinal diseases. Before the operation, the hospital informed the patient that the operation might lead to death, but did not inform him that it might lead to disability. After the operation, the patient was disabled, so the patient asked for compensation for damages on the grounds that the hospital had insufficient notification. Finally, the court ruled to support the patient's request.
The United States belongs to a case law country. The previous case is so verified, and then similar cases follow the previous case, so a large number of cases have emerged. Afterwards, other countries have successively made such provisions by formulating or amending laws. Under the model of
, the status between doctors and patients is equal. On the basis of respecting doctors' professional judgments, patients' right to make decisions is also being taken more and more seriously, which also reflects the progress of society. On the one hand, the doctor’s obligation to inform requires that doctors not transfer the adverse consequences of medical behavior to patients by relying on their professional judgment, and give patients the right and opportunity to say “no” to medical risks. On the other hand, the doctor's obligation to inform also provides the doctor with the opportunity to reduce or exempt responsibility, because it is the choice made by the patient on his own, and the corresponding adverse consequences should be borne by the patient personally.
More than 20 years ago, in my country,
cases of doctors' obligations began to appear.
0 The earliest case of my country's obligations of notification occurred in 1999 . Zheng went to a hospital for a left eyelid lipoma resection. After the operation, he developed ptosis of the left eye and was diagnosed as injury to the upper eyelid muscle. Zheng believes that the hospital did not inform him of the postoperative complications before the operation, and accidentally injured the levator muscle during the operation, and asked the hospital to bear the liability for compensation at fault. The appraisal opinion of the Medical Accident Appraisal Committee believes that the hospital's diagnosis and treatment are in principle improper. The patient's left eye ptosis is currently a postoperative complication, and the conclusion is that this medical incident does not belong to a medical accident.
After the trial, the court held that damages facts, causal relationships, faults and improper behaviors in medical disputes are four necessary requirements for the medical unit to bear the liability for compensation for tort damages. However, according to the appraisal opinion issued by the appraisal department, it cannot prove that the hospital was at fault during the operation. Therefore, Zheng's request for the hospital to bear the liability for compensation was not supported.
After the first instance judgment, Zheng was dissatisfied and filed an appeal. After the second instance court held that since the medical institution performs surgery on patients to a certain extent and achieves treatment results, all hospitals should obtain the patient's informed consent as much as possible before performing the surgery. The patient's consent for the surgery and acceptance of the consequences of the surgery should be based on full knowledge of the surgical risks, otherwise it cannot be regarded as true consent. In this case, the first three points of notification recorded in the preoperative conversation record between the hospital and the patient Zheng's family clearly point to it, and it did not mention that the operation may injure the levator muscle. The damage to the levator muscle of Zheng is not an eyeball structural injury, so it does not belong to the fourth point of notification. Since the hospital did not fully explain the risk of surgery to Zheng, Zheng lost the opportunity to choose whether to take the surgery or not, and caused serious consequences, the hospital should bear civil tort liability for this.
At present, there have been new changes in the notification obligations in the Civil Code
Before the promulgation of the Tort Liability Law, my country stated that obligations are scattered in administrative regulations and rules.For example, Article 26 of the "Practical Physicians Law" promulgated in 998 stipulates that doctors should truthfully introduce the condition to the patient or their family members. Article 11 of the "Regulations on the Handling of Medical Accidents" promulgated in 2002 stipulates that in medical activities, medical institutions and their medical staff shall truthfully inform the patients of their condition, medical measures, medical risks, etc., and promptly answer their inquiries.
Article 55, Paragraph 1 of the Tort Liability Law stipulates , medical personnel shall explain the condition and medical measures to the patients during diagnosis and treatment activities. If surgery, special examinations, or special treatment is required, medical personnel should promptly explain medical risks, alternative medical plans, etc. to the patient, and obtain written consent of in ; if is not suitable to explain to the patient, they should explain to the patient's close relatives and obtain written consent of to the patient.
The Civil Code changes "instructions" in the Tort Liability Law to "Specific explanations" , change "Written consent" to "Clearly consent" , change "not appropriate to explain to patients" to "No or not appropriate to explain to patients".
Article 1219, paragraph 1, stipulates that medical personnel should explain their condition and medical measures to the patients during diagnosis and treatment activities. If surgery, special examinations, or special treatment is required, medical personnel should promptly explain medical risks, alternative medical plans, etc. to the patient, and obtain the express consent of to ; if cannot or is not suitable to explain to the patient, they should explain to the patient's close relatives and obtain the express consent of to .
Finally, Judge Han Tao reminded that
Doctors have the following obligation to inform:
1. says to clarify the diagnosis of the condition: explain the patient's condition, the consequences of not conducting the medical behavior, etc.
2. Reasons for the medical behavior to be taken. The nature, reasons, content of medical measures, expected diagnosis and treatment effects, and the scope of the invasion of patients by medical measures.
3. Possible dangers. For example, the toxic side effects, risk and complications of the drug. There are three criteria: (1) risks that are expected and easy to prevent in medicine according to the usual medical laws; (2) medically foreseeable, but there is no effective prevention method; (3) stereotype risks that occur and are accidental and difficult to avoid.
4. Is there any other alternative medical behavior? Risks, effects, complications of alternative medical behavior. For example, cholecystectomy, modern medical treatment has two methods. One is to directly operate the body surface and remove it directly by hand. This method has great trauma and the patient needs to recover for a long time; the other is to remove it laparoscopicly. This method has little trauma and the patient recovers quickly after surgery, but it requires general anesthesia and is costly.
5. related medical treatment costs. For example, the approximate cost of medical expenses and the medical insurance situation.
In addition, Article 23 of the Regulations on Prevention and Handling of Medical Disputes stipulates that in the event of a medical dispute, medical institutions shall inform the patient or their close relatives of the following matters: (1) Legal ways to resolve medical disputes; (2) Regulations on the sealing and unsealing of medical records and physical objects on site; (3) Regulations on the review and copying of medical records. If a patient dies, his or her close relatives should also be informed of the regulations on autopsy. This is a broadly informed content.
While hearing medical dispute cases, Xicheng Court is constantly analyzing and summarizing the causes of medical disputes and litigation laws, and combining with our hospital's "I do practical things for the people" activity, it promptly carries out legal publicity in order to standardize hospital medical behavior and reduce the occurrence of doctor-patient conflicts.
Contributed by: Han Tao, Sun Xuewu
Photo provided by: Sun Xuewu
Editor: Han Lu Xu Jianlong
