This is the 3543rd article of Da Yi Xiao Nursing
Seeing righteousness and courage is a traditional virtue of the Chinese nation. However, in recent years, "not to help" and "not to save" have become social pain points, many people are afraid of "seeing righteousness and courage", and more is better than less has become the first reaction of many people when they see people in distress.
This happened not long ago. 72-year-old Li Laobo felt dizzy, went to the community health service center near his home for treatment, did not expect to faint on the street on the way, and Sun Mou, who happened to pass by, did cardiopulmonary resuscitation on him. After Li Laobo regained consciousness, he was sent to the hospital by 120 for rescue treatment. Lao Bo Li was diagnosed with bilateral 6 rib fractures, contusion of the right lung, hypokalemia. After 18 days of hospitalization, there was a basic recovery.
Afterwards, Li Laobo sued Sun in court, believing that Sun had caused him physical damage during the rescue process and demanding that Sun bear the liability for compensation. The court held that, according to Article 184 of the Civil Code, if the rescuer suffers damage to the recipient due to the voluntary implementation of the act of emergency rescue, the rescuer shall not bear civil liability. Sun voluntarily carried out emergency rescue behavior, although the rescue process caused damage to Li Laobo, but the rescuer should not bear civil liability.
The exemption from liability for "voluntary emergency rescue acts" stipulated in Article 184 of the Civil Code positively responds to the confusion in society about "saving or not saving", exempts helpers from responsibility, advocates and encourages people to help others, and leads the formation of a good social atmosphere of upward goodness.
So the question is, as long as it is emergency relief, can it be exempted from liability? Today, let's talk about the legal nature and legal responsibility of emergency assistance carried out voluntarily and because of special obligations.
In the case of the treatment of patients with acute and critical illness, there are two situations: voluntary emergency assistance and emergency medical assistance due to special obligations. What is the difference between the two?
The main difference lies in whether the rescuer has an obligation to rescue the recipient. If the rescuer is not obliged to rescue the recipient, but in good faith, it is an act of voluntary emergency relief. If the rescuer has the obligation to rescue the recipient, it is an act of emergency relief due to a special obligation. There are four sources of special rescue obligations: obligations expressly provided by law, obligations arising from contracts or other legal acts, obligations arising from special relationships, and obligations arising from prior acts.
Emergency assistance to critically ill patients by medical institutions and their medical staff within medical institutions or in pre-hospital emergency care is a special rescue obligation, which is derived from the express provisions of national laws.
Article 31 of the Regulations on the Administration of Medical Institutions stipulates that medical institutions shall immediately rescue critically ill patients. Patients who cannot be diagnosed or treated due to limited equipment or technical conditions shall be promptly referred.
Article 22 of the Measures for the Administration of Pre-hospital Medical Emergency stipulates that after receiving the "120" pre-hospital medical emergency call, the emergency center (station) shall promptly dispatch ambulances and pre-hospital medical emergency professionals according to the needs of pre-hospital medical emergency or from the emergency network hospital. Pre-hospital medical emergency services must not be refused, prevaricated, or delayed for reasons of command and dispatch.
Article 24 of the Law on Practicing Physicians stipulates that physicians shall take urgent measures to diagnose and treat critically ill patients in a timely manner; they must not refuse emergency treatment.
The first paragraph of article 27 of the upcoming Physicians Law stipulates that for patients who need urgent treatment, physicians shall take urgent measures to diagnose and treat patients, and must not refuse emergency treatment.
Paragraph 1 of Article 17 of the Nurses' Regulations stipulates that nurses shall immediately notify the physician if they find that a patient is in critical condition during their practice activities; in order to save the life of a dying patient in an emergency, they shall first carry out necessary emergency rescue.
Therefore, emergency assistance to critically ill patients by medical institutions and their medical staff within medical institutions or in pre-hospital emergency care is a statutory act of duty. If the medical staff has fulfilled the obligation of reasonable diagnosis and treatment in an emergency such as rescuing a patient whose life is in danger, and the patient is damaged in the diagnosis and treatment activities, the medical staff shall not be liable; however, if the medical staff is at fault in the diagnosis and treatment activities, and the reasonable diagnosis and treatment obligations are not fulfilled, so that the patient is damaged, then the patient can request the medical institution to compensate the medical institution according to the actual situation and in accordance with the provisions of Articles 1218, 1219, 1221 and 1222 of the Civil Code.
However, if a medical personnel discovers that a natural person's right to life, body or health has been infringed or is in other critical situations during non-working hours or at a non-working place, the act of emergency treatment voluntarily carried out free of charge is not a "job act" and does not belong to an individual with a statutory obligation to rescue, causing damage to the rescued person, and article 184 of the Civil Code shall be applied to exempt him from liability.
In summary, the legislative purpose of Article 148 of the Civil Code is to encourage natural persons who have no statutory or contractual obligations to voluntarily provide assistance to others when the situation is urgent, and as long as it is subjectively for the benefit of others, there is no need to bear responsibility for the damage that may be caused or increased in the rescue process. Therefore, the subject of voluntary emergency assistance is a natural person who is not obligated to rescue, and it is an unspecified non-obligated subject.
Author: Shanghai Boss & Young Zhongjian Zhonghui Law Firm
Zheng Jun, lawyer