In order for patients to better protect their legitimate rights and interests, today the editor will talk to you about "The second instance court found that the doctor has no qualification for anesthesia, and the judgment has increased the proportion of responsibility for the doctor."
In judicial practice, when the court heard the case of medical damage liability dispute , it also referred to the appraisal opinions. Considering whether the medical party has a legal presumption that the medical party is at fault, the proportion of the medical party liability for compensation will be finally determined; in the following cases, the Chinese medicine party arranges a doctor without anesthesia to perform general anesthesia on the patient, causing damage to the patient; the second instance court believes that if the anesthesiologist is not qualified to be anesthesia, the second instance court ruled that Hospital A would bear 60% of the compensation liability. Based on the comprehensive consideration of the case, the second instance court ruled that Hospital A would bear 80% of the compensation liability.
Practical case reference: Wang Mou and others sued Hospital A for medical damage liability dispute
On X, 2012, Peng Mou was admitted to Hospital A for treatment due to illness and was diagnosed with intestinal obstruction. Two days later, he was diagnosed with an ovarian cyst. On the morning of the fourth day of admission, Peng underwent general anesthesia ovarian cyst removal surgery at Hospital A. After the operation, Peng fell into a coma due to brain hypoxia, ××. When Peng was in a coma, Hospital A asked Peng to be discharged. On the 16th of the next month, Hospital A signed a settlement agreement with Peng's family, agreeing that Hospital A would pay RMB 212,000 (capital 212,000 yuan) compensation; the patient's family admitted that they voluntarily gave up any request for rights to Hospital A, etc. Later, Peng was discharged from the hospital and was diagnosed as: 1. ××. 2. After left adnexcision and appendectomy. 3. cerebral infarction . After being discharged from the hospital, Peng went to several hospitals for treatment until his death on X-X, 2014. After Peng passed away, his close relatives Wang and others sued Hospital A to court to claim compensation.
's appraisal opinion is: "The medical behavior of Hospital A is at fault, which is causal and related to the current damage consequences of the person being examined Peng. It is inferred that Hospital A's fault participation rate is 40-60%.
The first instance court found that Hospital A bears 60% of civil compensation liability. Both the doctor and the patient were dissatisfied with the judgment and filed an appeal. In the second instance, the court found that Hospital A did not provide the practicing physician qualification certificate of anesthesiologist Guo.
The second instance court held that this case was a medical compensation dispute. 1. Regarding whether the "Medical Dispute Reconciliation Agreement" signed by both parties can be the end of this medical dispute and whether Peng's relatives can claim rights from Hospital A. First of all, the "Medical Dispute Resolution Agreement" signed by the two parties is an agreement between the two parties to voluntarily establish, change, and terminate the civil rights and obligations relationship after consultation. It is an civil contract , which is legally binding on both parties. Secondly, since the "Medical Dispute Settlement Agreement" is a civil contract, of course there are cases that can be changed or revoked. The patient Peng became a vegetative state, involving medical professional knowledge and medical professional experience. The relatives of the patient Peng did not have medical professional knowledge or medical professional experience. Hospital A had medical professional knowledge and medical professional experience. Therefore, when the two parties signed the "Medical Dispute Settlement Agreement", Peng's relatives were obviously at a disadvantage in medical professional knowledge and medical professional experience. Therefore, it was obviously unfair when the two parties signed the agreement and should be changed according to law. Therefore, the "Medical Dispute Reconciliation Agreement" signed by both parties cannot be used as the end of this medical dispute. The relatives of a patient, Peng, can claim rights from Hospital A within one year.
2. Regarding whether there was any fault in the medical behavior of Hospital A during the medical treatment, causing Peng to become a vegetative state and whether there is a causal relationship between him and his final death. According to the relevant provisions of Articles 2 and 21 of the " Practicing Physician Law of the People's Republic of China", doctors who obtain the qualification of practicing physicians or assistant physicians in accordance with the law shall engage in medical activities within the scope of their registered practice. Anesthesiologists engaged in anesthesia major must have the qualifications of anesthesia practitioners and have registered to engage in medical activities within the registered scope of practice.The evidence in this case shows that Guo, a physician who gave the patient Peng for general anesthesia surgery, failed the anesthesia professional examination, failed the registration of anesthesia professionally, and did not obtain the qualification of anesthesia practitioner. A Hospital stated that according to the Ministry of Health's "Interim Provisions on the Scope of Practice in Physicians' Practice Registration " (2001) No. 169, it is believed that Guo is a surgical practitioner, has a major in surgery, and the surgical major includes sports medicine and anesthesia major. Then the reason why Guo has an anesthesiologist qualification cannot be established. And according to the appraisal opinion, during the diagnosis and treatment of Peng, Hospital A, the medical behavior of in the ward of ×× person did not comply with the medical procedures, resulting in the discovery of abnormal situations in the patient in a timely manner, and there is a partial causal relationship with Peng's current vegetative state. If the patient is harmed and the medical party violates laws, administrative regulations, rules and other relevant diagnosis and treatment regulations, it is presumed that the medical institution is at fault. In summary, Hospital A was at fault during the diagnosis and treatment with the patient Peng, and there was a partial causal relationship with Peng's status as a vegetative state and his final death. The appraisal opinion was presumed that the participation of the medical prescription inadequate diagnosis and treatment behavior was 40%-60%. Then the first instance court also ruled that Hospital A would bear 60% of the compensation liability without considering that the anesthesiologist was not qualified to bear anesthesia, and the second instance court corrected that Hospital A would bear 60% of the compensation liability for the first instance judgment. Based on the comprehensive consideration of the case, the second instance court stipulated that the hospital A should bear 80% of the compensation liability.
The court finally ruled that Hospital A would compensate Wang and others for various losses such as medical expenses, nursing expenses, death compensation, mental damage compensation, , appraisal expenses, etc. (excluding the part paid by Hospital A).
Note: The legal content involved in this case has been listed below the article.
" Civil Code of the People's Republic of China "
Article 1179 If you infringe on others and cause personal injury, you shall compensate for medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospitalization food subsidy expenses, etc. for reasonable expenses for treatment and rehabilitation, as well as income reduced due to loss of work. If a disability is caused, the auxiliary equipment expenses and disability compensation shall also be compensated; if a death is caused, the funeral expenses and death compensation shall also be compensated.
Article 1183 If a person infringes upon the personal rights and interests of natural persons and causes serious mental damage, the injured party has the right to request compensation for mental damage to .
Article 1218 If a patient is damaged during diagnosis and treatment activities and the medical institution or its medical staff is at fault, the medical institution shall bear the liability for compensation.
Article 1222 If a patient is damaged during diagnosis and treatment activities and one of the following circumstances occurs, the medical institution is presumed to be at fault:
(I) Violating laws, administrative regulations, rules and other provisions on diagnosis and treatment standards;
(II) Concealing or refusing to provide medical records related to disputes;
(I) Losing, forging, tampering or illegally destroying medical records.
" Physician Law of the People's Republic of China "
Article 2 The doctor referred to in this law refers to professional medical personnel who have obtained the qualification of a doctor in accordance with the law and have been registered to practice in medical and health institutions, including practicing physicians and practicing assistant physicians.
Article 34 Practical assistant physicians shall practice in medical and health institutions according to the registered practice category and scope of practice under the guidance of the practicing physician.
