Author: Medical Law Hui
Brief facts of the case
The patient, Mr. Fang (56 years old), was working at the construction site at 21:00 p.m. when he quarreled with other workers of the team due to trivial matters, and was beaten and injured by 4 workers of the team. At 23:30 that night, Xu was sent by ambulance to the town health center for rescue treatment, and at 1 o'clock the next day, symptoms such as loss of consciousness appeared, and after 2 hours of rescue, the doctor communicated with the patient's family, and the family agreed to give up the rescue, and declared death at 3:45. After autopsy, the patient was consistent with the characteristics of hemorrhagic shock death caused by the injury to the lateral left abdomen and left rib caused by the injury of the left abdomen with a blunt object.
In the course of hearing the case of intentional injury by four workers, the court recommended to the procuratorate for medical malpractice appraisal. The medical malpractice technical appraisal of the Medical Association states: the patient died about one hour after admission, the condition was critical, the progress was rapid, the doctor lacked the surgical conditions to deal with the abdominal bleeding; the doctor had a transfer notice, but the patient (co-worker) did not agree to the transfer, coupled with the patient's critical condition, the risk of transfer was extremely high; the doctor had deficiencies in the rescue shock process, such as irregular fluid resuscitation treatment, and there were inappropriate use of mannitol. The doctor violated the diagnosis and treatment routine in the process of diagnosis and treatment, but the patient's condition was critical, the progress was rapid, and the medical technology level and medical conditions of the town health center were limited, so the doctor assumed the secondary responsibility for medical malpractice. Conclusion: This case is a First Class A medical malpractice, and the doctor bears secondary responsibility. In this criminal incidental civil lawsuit, the court ordered the defendant in the attached civil lawsuit to compensate the family for more than 80,000 yuan in losses such as funeral expenses, transportation expenses, and accommodation expenses due to the death of the patient.
The patient's family also filed a civil lawsuit on the grounds of medical damage liability disputes, demanding that the town hospital compensate for various losses totaling more than 780,000 yuan.
Court hearings
The court of first instance held that, according to the provisions of the Civil Code, if a medical institution causes damage to the patient due to its fault in the course of diagnosis and treatment, it should bear the liability for compensation. Although the town health center has irregular liquid resuscitation treatment and improper use of mannitol in the process of diagnosis and treatment, combined with the technical appraisal opinion of medical malpractice, the appraisal opinion of the cause of death and the actual situation of this case, it is more appropriate for the town health center to bear 20% of the responsibility for the death of the patient. For funeral expenses, travel expenses, transportation expenses, accommodation expenses, etc. arising from the handling of funeral matters, the criminal attached civil judgment has been supported and will not be repeated. The town health center was ordered to compensate the victim for death compensation and mental damage relief totaling more than 140,000 yuan.
The injured party appealed, arguing that the secondary liability should be compensated by about 50%, and the court ruled that the proportion of 20% liability was too low. The court of second instance dismissed the appeal and upheld the original judgment.
Brief analysis of the law
Medical damage liability dispute cases have strong professionalism and complexity, and in trial practice, it is often necessary to clarify whether the doctor's diagnosis and treatment behavior is at fault, whether there is a causal relationship between the fault and the consequences of the patient's damage, and the degree of causal force. Under the current "dual" appraisal system, there are two appraisal modes of medical damage appraisal and medical malpractice technical appraisal, according to the data of the medical law team's "2021 National Medical Damage Liability Dispute Case Big Data Report", in the second-instance trial cases of medical damage liability disputes in 2021, there are 1444 cases applying for medical damage appraisal, accounting for up to 90%, including 123 appraisals by medical associations, 1321 appraisals by forensic appraisal institutions, and 138 cases applying for medical malpractice appraisal. Accounting for 9%; the authenticity of medical record materials is not recognized, and there are 21 cases of applying for cultural inspection and appraisal of relevant materials, accounting for 1%. It can be seen from this that medical damage appraisal is the main way for people's courts to entrust appraisals.
Question of criteria for the division of the causal force of fault. The technical appraisal of medical malpractice is called the degree of responsibility for medical negligence, which is divided into four levels: complete responsibility, primary responsibility, secondary responsibility, and minor liability. In terms of medical damage identification, according to the degree of participation, that is, according to the degree of causal force of personal injury in the consequences of the disease (causal relationship type), the degree of personal injury participation is divided into six levels: full causation, primary causation, equal causation, secondary causation, minor causation, and no causation. However, whether it is a medical damage appraisal opinion or a medical malpractice technical appraisal opinion, it is a kind of civil litigation evidence, and the proportion of liability to a specific extent needs to be determined by the judge based on the comprehensive analysis of the evidence in the whole case. According to the "2021 National Big Data Report on Medical Damage Liability Dispute Cases" of the Medical Law Hui team, the second-instance trial change rate is only 20%, while the appeal cases that increase the proportion of liability are only 2.8%, and in trial practice, it is difficult to get the support of the court of second instance.
In November 2021, the Ministry of Justice issued the Guidelines for Determining the Causal Relationship between Personal Injury and Disease, which provides clearer guidance and reference for the degree of fault participation and causal force in the identification of medical damage. According to the magnitude of the causal force of personal injury in the consequences of the disease (type of causality), the degree of participation in personal injury is divided into the following six levels in order: a) complete causality: 96% to 100% (recommended 100%); b) primary causality: 56% to 95% (recommended 75%); c) equivalent causality: 45% to 55% (recommended 50%) ;d) secondary causality: 16% to 44% (recommended 30%); e) minor causality: 5% to 15% (recommended 10%) f) No causation: 0% to 4% (0% recommended).
Regarding the compensation items between criminal incidental civil compensation and medical damages tort compensation. According to the provisions of law, where the victim suffers material losses due to a criminal infringement of his personal rights or the destruction of his property by the criminal, he has the right to file an attached civil lawsuit in the course of the criminal proceedings; Where an attached civil lawsuit is initiated or a separate civil lawsuit is filed to claim compensation for moral losses due to criminal infringement, the people's court generally does not accept it. It can be seen from this that the moral loss fee is not a compensation item, so whether the death compensation and disability compensation are material losses?
In accordance with the relevant criminal justice interpretations of the Supreme People's Court, when making a judgment on an attached civil lawsuit, the amount of compensation that the defendant should pay shall be determined on the basis of the material losses caused by the criminal act and in light of the specific circumstances of the case. Where a criminal act causes bodily harm to a victim, compensation shall be made for medical expenses, nursing expenses, transportation expenses, and other reasonable expenses paid for treatment and rehabilitation, as well as income lost due to lost work. Where a victim is disabled, compensation shall also be made for expenses such as expenses for assistive devices for the disabled; where the victim's death is caused, funeral expenses and other expenses shall also be compensated. It should be noted that if driving a motor vehicle causes casualties or causes major losses to public or private property, which constitutes a crime, the liability for compensation shall be determined in accordance with the provisions of Article 76 of the Road Traffic Safety Law of the People's Republic of China. Therefore, in addition to criminal incidental civil cases such as traffic accidents, the compensation items for criminal incidental civil cases generally do not include death compensation, disability compensation, and living expenses of dependents.
In addition, there is no clear legal provision on whether moral losses should be compensated in proportion to fault, so there is a controversy in judicial practice, but moral losses involve the direct interests of both doctors and patients, and everyone is welcome to leave a message to discuss.
(This article is the original of Medical Law Hui, based on real cases, and adopts pseudonyms to protect the privacy of the parties)