Medical damage liability can be roughly divided into three categories (the current general view): one is the liability for damage to medical technology " Civil Code " Articles 1218, 1221, 1222, and 1224; the second is the liability for damage to medical damage to violate the obligation to inform the civil code Article 1219 of the Civil Code; the third is the liability for damage to medical products Article 1223 of the Civil Code.
mainly explains the first two types of damage liability here. medical product damage liability is currently waiting for the modification of relevant laws and regulations, and also falls within the general category of tort liability . The modified content shall prevail, and there are expected to be significant modifications.
1. Liability for damage to medical technology (provisions below three terms)
Article 1218 of the Civil Code stipulates that 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 1221 of the Civil Code stipulates that if medical personnel fail to fulfill their medical obligations corresponding to the medical level at that time during diagnosis and treatment activities, and cause damage to patients, the medical institution shall bear the liability for compensation.
Article 1222 of the Civil Code stipulates that 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:
1. Violating laws, administrative regulations, rules and other provisions on diagnosis and treatment standards;
2. Concealing or refusing to provide medical records related to disputes;
3. Losing, forging, tampering or illegally destroying medical records.
The above three laws stipulate that are the normative clauses for the liability for medical technology damage. Throughout the legal provisions, it can be clarified:
1. Scope of application: Medical personnel of medical institutions or medical institutions cause personal injury to patients due to faults during diagnosis and treatment (including the right to health, right to life, physical rights ) (from this, it can be seen that it is fault liability ).
2, attribution principle : Fault liability.
Victims must provide evidence to prove that the medical staff of a medical institution or medical institution is at fault. They no longer use the presumption of fault and causal relationship . This is the determination of the law to loosen the responsibilities of medical staff of a medical institution or medical institution and reduce the responsibility. (The original tort liability amended clause is directly included in the content of the Civil Code)
Standard for judging the fault of medical personnel: Medical personnel fail to achieve the corresponding diagnosis and treatment level in the diagnosis and treatment activities. In short, if the general diagnosis and treatment level was reached at that time, there would be no fault, otherwise there would be fault. The principle of mixed standards is adopted to adopt this judgment standard.
adopts national unified standards for statutory diagnosis and treatment obligations and basic diagnosis and treatment obligations, and does not use different standards depending on qualifications and regions. For other diagnosis and treatment standards, regional standards can be adopted, and factors such as regional differences and qualification differences can be considered. In comparison, the basic diagnosis and treatment level of developed cities is generally higher than that of small and medium-sized cities. The basic diagnosis and treatment level in eastern provinces is generally higher than that in remote areas in western regions.
At the same time, there are three situations where there are presumption of fault attribution methods: a. Violation of laws, administrative regulations, rules and other relevant medical treatment standards; b. Conceal or refuse to provide medical records related to disputes; c. Losing, forging, tampering or illegally destroying medical records.
3. Responsible entity: Medical institutions, the medical institutions here should provide an expanded explanation, that is, all hospitals, clinics, and beauty salons that have obtained medical qualifications belong to medical institutions.
Medical institutions assume the main responsibility.
If a medical staff member has gross negligence or fault, he or she shall not bear any responsibility.
4. Disclaimer:
Article 1124 of the Civil Code stipulates that if a patient is damaged during diagnosis and treatment activities and one of the following circumstances occurs, the medical institution shall not bear the liability for compensation:
a. The patient or his close relatives do not cooperate with the medical institution to conduct diagnosis and treatment that meets the diagnosis and treatment standards;
b. Medical personnel have fulfilled their reasonable diagnosis and treatment obligations in emergency situations such as saving lives in critically ill patients;
c. It is difficult to diagnose and treat due to the medical level at that time.
In the first case of the preceding paragraph, if a medical institution or its medical staff is also at fault, it shall bear the corresponding liability for compensation.
2. Liability for medical damages that violate the obligation to inform
Article 1219 of the Civil Code 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 shall promptly explain the medical risks and alternative medical conditions to the patient and obtain their clear consent; if it is impossible or not appropriate to explain to the patient, they shall explain to the patient's close relatives and obtain their clear consent.
If medical personnel fail to fulfill their obligations in the preceding paragraph and cause damage to patients, the medical institution shall bear the liability for compensation.
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