Author: Lawyer Zhang Xiyun, lawyer of Liaoning Hexiang Law Firm.
The 25th meeting of the Standing Committee of the 13th National People's Congress reviewed the "Draft Law of the People's Republic of China (Draft)" (hereinafter referred to as the Draft) (the proposal on the revision of the Practicing Physicians Law) and solicited opinions from the public. The
draft has seven chapters and fifty-eight articles. Through the review of Chapter 6 "Legal Liability", the author found that the provisions on legal liability in the draft were reduced to seven articles compared with the 13 articles before the revision, that is, the original was Articles 36 to 48, and the draft was Articles 48 to 54. The terms seem to be reduced, but the legal liability is increasing, which is mainly reflected in the following aspects:
1, certificate acquisition - increased penalties and types
(I) Added types of obtaining "certificates" by improper means
"Physician Law of the People's Republic of China" (hereinafter referred to as the Physician Law) Article 36 stipulates that certificates obtained by improper means are limited to "medical practice certificates". Article 48 of the draft stipulates that "obtaining physician qualification certificates or practice certificates by improper means" has been added, and the "medical qualification certificates" has been expanded, and the scope of punishment has been expanded.
For this behavior, the Physician Law stipulates that the health administrative department that issued the certificate will be revoked. The draft stipulates that the health and health authorities will "revoke" it.
"revoked", as an administrative penalty, is used by the competent authority to cancel the licenses that the violator has obtained previously by canceling the certificate or publicly abolishing the validity of the certificate. "Revocation" is used by the competent authority to cancel administrative licenses or documents issued by law or established organizational structures, and can also be used to cancel qualifications, qualifications, etc.
The perpetrator obtained the certificate by "improper means" to prove that the certificate should not have been issued, so it was "revoked" by the health and health authorities. It is more precise to use "revocation" instead of "revocation". It should be noted that the draft has expanded the scope of certificates.
(II) Added penalty regulations for perpetrators
Physician Law Article 36 of "obtaining a physician's practice certificate by improper means" only stipulates that the supervisors and other directly responsible persons shall be punished in accordance with the law. Article 48 of the draft, in addition to retaining the original provisions, also adds the provisions for the individual punishment of the perpetrator, that is, "If the physician qualification certificate or practice certificate is obtained by improper means, the health and health authority that issued the certificate shall be revoked and punished according to law; the supervisors and other directly responsible persons shall be punished according to law."
2, In terms of doctor registration - Added circumstances of non-registration
Article 15 of the Doctor Law stipulates four situations of non-registration, that is, those who do not have full civil capacity; those who are subject to criminal punishment, less than two years from the date of execution of the criminal law to the date of application for registration; those who are subject to administrative penalties for revocation of the physician's professional certificate are less than two years from the date of the penalty decision to the date of application for registration; those who are not suitable for medical, prevention, and health care business are not suitable for other circumstances. Article 14 of the draft
stipulates six items on the circumstances where doctors are not registered, and two items are added to the Physician Law, which are: (IV) Those who seriously violate the professional ethics of doctors and medical ethics; (V) Those who have been cancelled for less than one year due to failing the doctor's assessment.
The professional ethics of doctors are also called "medical ethics", which are reflected in the fact that medical staff save lives and help the wounded, implement socialist humanitarianism; respect the personality and rights of patients; serve civilized and politely; be honest and dedicated to the public; keep medical secrets for patients; learn and respect each other, unite and cooperate; correctly handle the relationship between peers and colleagues, be rigorous and realistic, work hard, study medical skills, strive for excellence, constantly update knowledge, and improve technical level. Medical ethics is also reflected in the interests of patients first, respecting patients, and carrying forward the spirit of saving lives and helping the wounded. If a doctor violates medical ethics and medical ethics, he will not be registered.
According to the draft, no practitioner practice activities shall be allowed without obtaining a practicing certificate with a doctor registered.Therefore, not registering means that the doctor cannot practice. Similarly, according to the requirements of the draft, if a physician fails the assessment and is cancelled for less than one year of registration, he will still not be registered. The review of the draft during the physician registration stage is more stringent. However, for violating the professional ethics of doctors and medical ethics, how to quantify them requires detailed regulations.
3, Legal Liability - Increased Practice Risks
Physician Law Article 37 stipulates that there are twelve circumstances for a doctor's legal liability in practice, namely, "If a doctor violates the provisions of this Law during a practice, and commits one of the following acts, the health and health department of the people's government at or above the county level shall give a warning or order the suspension of the practice activities for more than six months and less than one year; if the circumstances are serious, his or her practice certificate shall be revoked; if a crime constitutes a crime, criminal liability shall be pursued in accordance with the law." The draft
increases the legal liability of a doctor to sixteen, and at the same time, the reserved terms have been modified and added. Judging from the modification and addition of content, it increases the professional responsibility of doctors and is not conducive to doctors' normal business development.
(I) "Medical Damage" has been added to the legal liability
According to statistics, the total number of medical damage liability dispute cases in 2020 was 18,670, 13,255 cases concluded in the first instance, and 4,160 cases concluded in the second instance. Types of medical damage include medical fault liability disputes, disputes involving infringement of patients' right to know and medical product liability disputes.
The content stipulated in Article 37, Paragraph (3) of the Physician Law is "causing medical accidents". Article 49 (2) of the draft adjusts the original item (3) to item (2), and adds "medical damage" on this basis, which stipulates that it is "causing medical accidents or medical damage".
There are many reasons for the occurrence of medical damage, including the fault liability of medical institutions or medical personnel, the complexity of the disease, and the invasive factors of the treatment. At present, there are special chapters in the Civil Code for the handling of medical damage, as well as relevant judicial interpretations made by Supreme People's Court . Even if medical institutions are at fault for the consequences of medical damage, they are divided into all and part of the responsibilities. Among the partial responsibilities, there are primary and secondary responsibilities. Medical institutions also have civil liability for compensation according to the degree of responsibility.
Therefore, it is not advisable to allow doctors to bear administrative or even criminal liability due to the consequences of medical damage. Otherwise, it will not conform to the objectivity of medical behavior and will not be fair to doctors, which is not conducive to the physician's enthusiasm for work and maintaining normal medical order.
(II) Added "unauthorized destruction" medical documents and related materials
Draft Article 49 Article 49 of Legal Liability (V) is "concealing, forging, tampering or unauthorized destruction of medical documents and related materials".
This provision is the original content of the Physician Law. Before the implementation of the Civil Code, the Tort Liability Law also had the same provisions, which was one of the presumptions that there was a fault in the medical institution. Article 1222 (III) of the Civil Code stipulates that "lost, forged, tampered or illegally destroys medical records", and the "destruction of medical records" is limited to "illegal". Article 53 of the " Implementation Rules for the Management Regulations of Medical Institutions " stipulates the retention period of medical records. The retention period of medical records of medical institutions shall not be less than 15 years, and the retention period of hospitalized medical records shall not be less than 30 years. There is no relevant provision yet on how to deal with medical records that exceed the retention period and whether it is illegal to destroy them.
The Civil Code limits the destruction of medical records. Regarding "illegal destruction", the draft stipulates "unauthorized destruction". Whether "unauthorized" destruction is equivalent to "unauthorized" is equivalent to "unauthorized" destruction, it is necessary to analyze it in combination with specific matters. If a unified understanding cannot be made, different understandings will arise and increase the professional risks of physicians.
The contribution of medical personnel to society is obvious to all, especially in the epidemic or major emergencies, medical personnel have played a fearless dedication to protect people's lives and health. However, even during the epidemic, the personal rights and interests of medical personnel are difficult to be protected. In recent years, the state has formulated regulations from all levels to strengthen the protection of medical personnel.As a special law for the majority of doctors, the "Doctor Law" should reflect the principle of giving priority to the protection of medical personnel and should not increase the risk of physicians' practice.
