Dissatisfied with the results of the diagnosis and treatment, the patient sued the hospital with the recording for 65,000 yuan

Brief facts of the case

Ms. Pan (21 years old) went to the municipal hospital for a rash on her body, and was diagnosed with "scabies" through the dermatology clinic, and the doctor prescribed topical and oral drugs such as desloratadine dry suspension, compound glycyrrhizinate tablets, calciep pills for the treatment of ringworm, and zinc oxide sulfur ointment for external drugs. Ten days later, because his condition did not improve, the patient went to the provincial hospital for hospitalization, the initial diagnosis was "eczema, general eczema", the next day supplementary diagnosis of "right lung mid lobe syndrome", after ten days of hospitalization, after discussion of difficult cases, the diagnosis was clearly defined as "fire red sores, hot poison blazing evidence, bullous pemphigoids". After 17 days of hospitalization, the patient was discharged from the hospital in Beijing for hospitalization, and the initial diagnosis was "bullous pemphigoid", and his condition improved and he was discharged from the hospital after 9 days of treatment.

The patient believes that due to the misdiagnosis of the dermatologist of the municipal hospital, the rash has become blistered, and the rash that did not have rashes has also begun to blister, and other parts have also been affected, which has brought great physical and psychological harm to it, and the lawsuit has been filed with the court to demand that the municipal hospital compensate it for a total of 65,000 yuan in treatment costs.

Court hearings

The court of first instance held that although the diagnosis of the municipal hospital was different from the final diagnosis of the patient's condition, because the disease itself was developable, the final diagnosis result could not be excluded from being caused by the development of the patient's own disease, and in the case that the patient failed to provide evidence that the diagnosis and treatment behavior of the municipal hospital was at fault, it claimed that the municipal hospital was liable for compensation, lacked factual and legal basis, and ruled to reject the patient's litigation claim.

The patient appealed and submitted a U disk recording of the call with the attending doctor of the city hospital to prove that the doctor of the city hospital misdiagnosed, which aggravated the condition, and then went to other hospitals for diagnosis and treatment, and found the doctor to negotiate compensation, and the doctor said to find a hospital. The court of second instance held that the recording of the call could prove that the patient negotiated compensation with the attending doctor of the municipal hospital after the aggravation of the condition, and the attending doctor asked the patient to resolve the matter through the official. The above evidence cannot prove that the doctors of the municipal hospital were at fault in the course of diagnosis and treatment. The judgment dismissed the appeal and upheld the original judgment.

Brief analysis of the law

If the patient suffers damage in the course of diagnosis and treatment activities, and the medical institution or its medical staff is at fault, the medical institution shall bear the liability for compensation. That is, whether the medical institution and its medical staff are at fault, and whether there is a causal relationship between the fault and the patient's damage consequences, is the premise for the medical institution to bear the liability for compensation. According to the principle of "who claims, who proves", the injured party must bear the burden of proof for the fault of the medical act carried out by the medical institution or its medical staff. If the patient is unable to submit evidence of fault or the causal relationship between the diagnosis and treatment behavior and the damage, the patient can apply to the court for medical damage appraisal in accordance with the law, otherwise the burden of proof will be borne.

On the legal validity of audio or video recordings. According to the provisions of the Civil Procedure Law, evidence includes eight kinds of statements, documentary evidence, physical evidence, audio-visual materials, electronic data, witness testimony, appraisal opinions and inquest records, and audio-visual materials include audio and video recordings, that is, we often call audio and video recordings. The Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings, which came into effect on May 1, 2020, deletes the provision that "audiovisual materials with other evidence supported by other evidence and obtained by lawful means, or copies of audio-visual materials that are correctly checked with audio-visual materials", and stipulates that "audio-visual materials and electronic data with doubts cannot be used as a basis for determining the facts of the case alone" and "adjudicators may review and determine a single piece of evidence from the following aspects: whether the form and source of the evidence conform to the provisions of the law", etc., so it can be seen that Although there have been changes in the description of the law, the use of audio and video recordings as evidence still needs to meet many conditions such as legal sources and undoubted points.

So in the case of the other party's ignorance and consent, is it a legal means or an illegal means to steal? It is generally divided into two situations: one is the audiovisual evidence obtained by secretly recording the process of communication between the two parties in person or on the phone, which is generally considered to be legally obtained and valid. The other is to place eavesdropping or recording equipment in the other party's place of residence, workplace, etc., or to adopt other illegal means to obtain audio-visual evidence, which is generally invalid because it is found to infringe on the legitimate rights and interests of citizens.

In this case, although the patient submitted a USB stick with the recording of the call with the attending doctor of the municipal hospital, according to the facts ascertained by the court, "the call recording can prove that the patient negotiated compensation with the attending doctor of the municipal hospital after the aggravation of his illness, and the attending doctor asked the patient to resolve it through the official", it could not prove that the municipal hospital was at fault, and in the absence of other evidence to support it, the court ruled that the patient bore the adverse consequences of not being able to adduce evidence.

In the event of a medical dispute, the medical institution shall inform the patient or his or her close relatives of the following matters: (1) legal ways to resolve the medical dispute; (2) provisions on medical record materials, on-site physical sealing and unsealing; (3) provisions on the consultation and reproduction of medical record materials. Where the patient dies, the close relatives shall also be informed of the provisions on autopsy. The doctor in this case informed the patient that it was resolved officially, which is commendable. With the enhancement of people's legal awareness and the variety of functions of digital products, audio and video recordings are common in practice, and if the doctor says the wrong thing in the communication with the patient, once the patient makes a recording, it is likely to be accepted by the judge in the lawsuit, thus ruling the doctor to bear the liability for compensation.

In addition, this case also involves a difficult case discussion system. The difficult case discussion system refers to the system of discussing the diagnosis or treatment of cases with difficult problems in order to clarify the diagnosis or improve the diagnosis and treatment plan as soon as possible. Medical institutions and clinical departments are required to clarify the scope of difficult cases, including but not limited to patients who have no clear diagnosis or difficult diagnosis and treatment plan, diseases that fail to achieve the expected efficacy within the cycle of clear efficacy, unplanned re-hospitalization and unplanned re-operation, and complications that may endanger life or cause serious damage to organ function.

Therefore, when medical institutions encounter difficult cases, they should be discussed by the department or medical management department, make a clear diagnosis as soon as possible, propose a treatment plan, and invite relevant department personnel or personnel outside the institution to participate if necessary, and the conclusion of the discussion should be recorded in the medical record.

(This article is the original of Medical Law Hui, based on real cases, and adopts pseudonyms to protect the privacy of the parties)