Yesterday, Dr. Zhang Yu of the Department of Oncology posted on his personal Weibo that he was dismissed by the Third Hospital of Peking University: "The hospital said that I violated professional ethics and social morality, affected the reputation of the hospital, expelled me, and even refused to give me the opportunity to defend." No matter how much I plead, it won't help."
Image source: Zhang Yu's personal Weibo
How is "misconduct" assessed?
According to Zhang Yu's public notice, the Third Hospital of Beijing Medical College terminated its employment relationship with the hospital at any time in accordance with Article 9 of the employment contract, "If Party B has any of the following circumstances: (8) Violating professional ethics or social morality, causing adverse effects on the reputation of the school".
Lawyer Liu Zhongzhi of Beijing Jingshi (Shanghai) Law Firm said that first of all, it is necessary to clarify the employment relationship between Zhang Yu and the Three Hospitals of Beijing Medical University, "from the literal point of view of this notice, there are only four words of the employment contract, and it is impossible to determine whether the relationship between the Beijing Third Court and Zhang Yu is a personnel relationship or an employment relationship; although the employment contract should refer to the personnel relationship, there are also two words of employment in the labor contract relationship in daily life." At present, most of the public hospitals in mainland China have personnel relations, labor relations, and even labor relations at the same time. Personnel relations are often colloquially referred to as within the establishment, and outside the establishment is the labor relations."
Of course, regardless of whether Dr. Zhang Yu and the hospital are ultimately in a personnel relationship or an employment relationship, he has the right to exercise his rights protection actions such as appeal, arbitration and litigation one by one in accordance with the statutory procedures stipulated in China. The biggest difference between these two different legal relationships lies in what measures Zhang Yu can take in the future and the provisions of specific applicable laws and regulations.
"If it is a personnel relationship, if Zhang Yu wants to protect his rights, he cannot go through the labor arbitration procedure, but should protect his rights in accordance with the relevant personnel relationship management regulations." Although both may be handled in the commonly known as the Labor and Personnel Arbitration Commission, the rules for handling specific rights protection are different, for example, personnel relations must be handled in accordance with the "Opinions on the Trial Implementation of the Personnel Employment System in Public Institutions", "Regulations on the Administration of Personnel in Public Institutions", "Interim Provisions on the Punishment of Public Institution Staff", etc., and labor relations must be handled in accordance with the "Labor Law" and "Labor Contract Law".
However, regardless of the employment relationship, whether Zhang Yu signs the notice or not, it will not affect the validity of the notice: "When the employer made the notice and sent it to Zhang Yu, it already had the corresponding legal effect; even if the employer wants to withdraw it later, it must be with Zhang Yu's consent, otherwise even if the change or withdrawal is made, it is invalid." If Zhang Yu later defends his rights, this notice may be found to be unlawfully lifted, but it does not affect the effectiveness of the act made and served at this time."
According to Zhang Yu's public notice, the Third Hospital of Beijing Medical College mentioned that the reason for the dismissal decision was that Zhang Yu "had a negative impact on the reputation of the hospital from April 2021 to February 2022, and the hospital had repeatedly reminded him of the improper behavior" after repeated reminders.
How to assess whether such behaviour is "inappropriate" and the impact on hospitals?
Lawyer Liu Zhongzhi said that the "professional ethics and social ethics" mentioned in the notice are relatively broad, and the specific list is not further clarified. "If it is really at the level of arbitration, it still depends on whether the employer enumerates which of Zhang Yu's specific acts violate which provisions, such as whether he complies with the professional ethics of doctors specified in the Employee Handbook (or similar internal regulation documents) approved and published by the employer's trade union, or whether the employer specifically points out whether Dr. Zhang Yu violates the Medical Practitioners Law, the Code of Ethics for Chinese Physicians, and so on."
Lawyer Liu Zhongzhi said that in June 2014, the Chinese Medical Doctor Association promulgated the Guidelines for the Ethics of Chinese Physicians, which may be related to this dispute, including: "Article 29: Physicians should respect each other, trust and support each other; correctly treat the theories and practices of Chinese medicine and Western medicine." Article 30: Fairly and objectively evaluate the character and ability of fellow physicians, do not shield and protect peers, and actively participate in legal procedures such as medical technology appraisal and court testimony. Article 31: Physicians should not denigrate each other, and should not improperly hinder the patient's trust in other peers."
Doctor's social media
The dismissal of Zhang Yu also opened a hole in the hospital's management of the doctor's social media platform.
At present, there are no unified regulations and requirements for mainland hospitals to open self-media accounts for doctors, and from the actual situation, the management of various hospitals is different.
Zhang Lin (pseudonym), a doctor at a third-class hospital in Hubei Province, told Ding Xiangyuan that his hospital had a more neutral attitude and had not made clear requirements for the management of personal social media accounts, "just hinted at by the director's phone call, there was no specific request." As for whether to disclose the name of the hospital in the personal description, there is no need to report the application in advance, "you can go to the personnel office to open a certificate of employment."
Chen Chenguang (pseudonym), a staff member of a third-class hospital in Shandong, said that the hospital's management requirements are different because of the content released, "the management of science popularization is relatively relaxed, many hospitals are still very supportive of successful doctors playing new media to help expand their influence, and the Publicity Department has also arranged mainstream media to assist in docking." However, the hospital requires employees not to involve hospital work content in self-media accounts outside of science popularization, including defending the hospital in public opinion events; and not to publish information involving sensitive content in the name of hospitals and hospital employees, such as commenting on doctor-patient disputes, injury incidents, or commenting on other hot topics."
In addition, the size of new media fans will also affect the management requirements of the hospital, "for example, if there are more than 100,000 Weibo fans, more than 50,000 Douyin fans, and more than 50 instant messaging group members who are group owners, they must fill out a form for the record." However, the management activities of filling out the filing form are tight and loose, and as far as I know, the literary and artistic youth of the Propaganda Department have privately opened public accounts without reporting them." Chen Chenguang introduced.
Doctors' social media statistics distributed by the hospital
(Courtesy of Chen Chenguang)
Lu Zheng (pseudonym), chief physician of a third-class hospital in Beijing, said that the hospital's management of doctors' releases is not only on public social platforms, but also includes the circle of friends of doctors: "The content of criticism of hospitals and departments must not be sent, and in addition, information related to the epidemic cannot be released without authorization, and the official notification shall prevail." Condition information, surgical photos, etc., under the condition of full protection of patient privacy, can only be published in professional journals or academic platforms, and cannot be posted on social platforms."
In the management of personal social media profiles, Lu Zheng also said that there were no restrictions before: "Unless you directly open Douyin in the name of the hospital or department to apply, you do not need to apply for a hospital in your personal profile." Previously, our department counted the situation of doctors opening vibrato, but there was no one to care, and the hospital did not take care of it."
"However, after the Incident with Dr. Zhang Yu, I don't know if it will have an impact." Although many doctors also post things on the Internet, they usually do not discuss or criticize the specific cases directly corresponding to their professions in detail, and chat about some hot science, which is more likely to be considered by the public as the personal views of doctors. And Zhang Yu himself is an oncology department, talking about tumor-related treatment, everyone may tacitly accept that he represents the views of the department or even the hospital, and there may be a delicate relationship."
After dismissal
Asked about possible follow-up movements and whether he had initiated rights protection, Zhang Yu said he "did not know what to do." In the notice, the Third Hospital of Beijing Medical College asked Zhang Yu to complete the handover by March 24, and when asked if he would return to the hospital next week, Zhang Yu said "probably not".
In addition, the hospital mentioned in the dismissal notice that "from now on, it is not allowed to carry out publicity or engage in medical, academic and other related work as an employee of the Third Hospital of Peking University". At present, Zhang Yu's Weibo certification information still shows that he is an attending physician of the Department of Cancer Chemotherapy and Radiology of Peking University Third Hospital.
As of the time of this article, Lilac Garden tried to contact the Publicity Department of the Third Hospital of Beijing Medical University, but the other party has not responded.
Curated by: Gyouza
Source: Zhang Yu's personal Weibo