Rule of Law Class| What kind of punishment will the anesthesiologist face if he is caught in the suspected live gynecological surgery?

The Paper's reporter Liao Yan

Recently, a doctor at Rizhao Central Hospital in Shandong Province was arrested on suspicion of live streaming gynecological surgery online, and the police are further investigating. On January 19, Rizhao Central Hospital responded to the surging news that the arrested doctor Li Mou was an anesthesiologist of the hospital.

What is the legal liability of the doctor involved? On January 19, a number of lawyers analyzed the situation revealed by the current case to the surging news (www.thepaper.cn) that Li Mou was involved in serious violations of professional ethics and infringed on the privacy of patients, and must bear civil liability, administrative liability, and possibly even criminal liability. Some lawyers also believe that if Li only broadcast the private parts live and did not disclose the patient's personal information, it does not constitute an invasion of privacy.

The surging news noted that a "statement on female male doctors secretly photographing female patients" written by a whistleblower on the Internet said that at 15:36 and 48 on January 15, 2022, he successively entered a live broadcast room of the B station platform and found that a male gynecological anesthesiologist broadcast gynecological surgery live, which had been broadcast live for about 1 hour, and the live broadcast was cut off after the report. In the case of the female patient's unknown, the male anesthesiologist repeatedly photographed the female patient's private part.

On the evening of January 18, Station B responded that after internal verification, the live broadcast room involved was repeatedly warned and cut off during the live broadcast on January 15, and then was permanently banned. At present, it has been reported to the public security organs and will actively cooperate with the police to carry out investigation and evidence collection.

On January 19, a staff member of the party hospital office of the hospital involved in the rizhao central hospital told the surging news that the doctor involved, Li Mou, was an anesthesiologist in the hospital. They have paid attention to the incident, and the public security department has intervened in the investigation and is waiting for the results of the public security investigation.

In this regard, Liu Ye, a lawyer at Shanghai Maritime Law Firm, introduced that under certain circumstances, doctors are allowed to videotape during surgery, but mainly real-time video recording, which is used for science popularization, teaching and monitoring of doctors' operation process. "A lot of them come with real-time surveillance footage and don't store images." Liu Ye said that one of the focuses of this case is to identify whether this live broadcast is for science popularization or to increase the number of clicks, which needs to be discussed from a moral level.

Ding Jinkun, a lawyer at Shanghai Dabang Law Firm, said that the purpose of the operation video is for patients or their families to see, not for the society to see. If it is not allowed by the patient, it shall not be disclosed or used for science popularization, otherwise it will be infringed.

Zhao Liangshan, a senior partner at Shaanxi Hengda Law Firm and a criminal defense lawyer, believes that if the doctor involved secretly photographs the privacy of the female patient, it violates Article 42 of the Public Security Administration Punishment Law, and the doctor involved can be administratively detained and fined.

Zhao Liangshan pointed out that if the case is characterized as the illegal and criminal acts of the doctors involved, and the hospital to which the doctors involved belong has management negligence, then the hospital only has management loopholes in civil affairs and has certain faults, such as causing mental losses to female patients, the hospital may face certain civil compensation liabilities.

Ding Jinkun also believes that the doctors involved in the case seriously violated professional ethics and infringed on the privacy of patients, and must bear civil liability and administrative liability.

Ding Jinkun further explained that civil liability refers to violations of the provisions of the Civil Code on the protection of citizens' privacy, and must apologize and compensate for losses. Administrative liability refers to the breach of the Practicing Physicians Act and the leakage of patient privacy. According to article 37 of the law, if the leakage of patients' privacy causes serious consequences, the health administrative department will be punished by suspending practicing for six months to one year, or revoking the practice certificate. At the same time, online live broadcasting has also violated the provisions of the Public Security Administration Punishment Law on the dissemination of privacy, and can be punished by public security.

Ding Jinkun also said that since the criminal law does not yet have the crime of invading privacy, there is only the crime of infringing on citizens' personal information or the crime of spreading obscene materials. However, the invasion of privacy in this case is slightly different from personal information, and it is a gynecological operation, which is difficult to say that it is obscene.

Liu Ye believes that in addition to considering whether the live broadcast footage in the incident exposed the patient's private parts, it also involves whether personal information, such as name and address, is also involved. If personal information is exposed, it involves an invasion of the patient's privacy and is subject to legal liability. If the doctor involved only broadcasts the private parts live and does not disclose the patient's personal privacy, it does not constitute an invasion of privacy.

Are the colleagues of the doctors involved during the live broadcast responsible? Ding Jinkun believes that if other doctors do not stop the filming behavior of the doctors involved in the case, it is also insufficient protection for patients, and violations of the "Practicing Doctors Law" will be punished administratively.

Xing Xin, a senior partner and lawyer at Hunan Jinzhou Law Firm, also believes that as a doctor, he has the obligation to protect the privacy of patients, and the doctors involved in the operation have the obligation to stop Li's behavior. Based on this specific obligation, the colleague who knows and does not prevent it shall also bear the corresponding legal responsibility according to his actual situation.

Zhao Liangshan introduced that according to article 42 of the Public Security Administration Punishment Law on voyeurism on women's privacy and article 237 of the Criminal Law on the crime of insult, only those who specifically commit acts of secretly photographing or insulting women are legally responsible, and if the colleagues of the doctors involved do not commit such acts, it does not constitute a crime and will not be punished by public security.

Zhao Liangshan suggested that when a female patient is secretly photographed in a private part without her knowledge, the channel for the female patient to defend her rights can be reported to the local police, and the police will file a case for investigation and pursue the administrative and even criminal responsibility of the doctor involved according to law. At the same time, female patients can resort to the local court to require the doctor involved to bear civil compensation liability; if there is a management loophole in the hospital to which the doctor concerned belongs, the female patient can also require the hospital to bear certain fault compensation liability in the litigation.

Editor-in-Charge: Cui Xuan Photo Editor: Shi Jiahui

Proofreader: Liu Wei