Source: Rule of Law Daily
The heart of beauty is shared by everyone. At the same time as the rapid expansion of the medical aesthetic market, medical aesthetic related complaints have also risen, and negative public opinion such as false publicity, illegal medical practice, inducing consumption, and inducing medical aesthetic loans have cast a shadow on the medical aesthetic industry.
According to the complaint data on the official website of the China Consumer Association, from 2015 to 2020, the number of complaints in the medical aesthetic industry received by the National Consumer Association increased from 483 to 7233, an increase of nearly 14 times in 5 years. According to the 2020 China Medical Beauty Industry Insight White Paper, as of 2020, only 12% of the industry will be legally and compliantly carried out medical aesthetic projects in the mainland; Legal and compliant physicians account for only 24%, the number of "black institutions" exceeds 80,000, and the number of illegal practitioners is as many as 100,000.
Five years of micro-plastic surgery The doctor is not qualified to practice medicine
Zhao Lanlan (pseudonym), who has loved beauty since childhood, has high requirements for her "appearance". In 2017, she first came into contact with medical beauty and met Dr. Zheng through the introduction of her friend Ma Xiao (pseudonym). Ma Xiao told her that Dr. Zheng, who had studied micro-plastic surgery in South Korea, had a wealth of plastic surgery experience and only charged medicine and manual fees. Compared with other aesthetic institutions, Dr. Cheng charges less. Therefore, Zhao Lanlan, who did not know much about medical beauty at that time, decided to try it under the persuasion of her friends. Ma Xiao told Zhao Lanlan that all the costs had been negotiated, and Zhao Lanlan only needed to transfer the fees to Ma Xiao after each plastic surgery, without transferring money to Dr. Zheng.
Zhao Lanlan told the "Legal Person" reporter that in the four years from 2017 to 2020, she underwent many micro-plastic surgeries through Dr. Zheng, with a total consumption amount of more than 74,000 yuan. During the plastic surgery process, she found that Dr. Zheng did not have a formal medical aesthetic studio, every operation was completed in her home, and each injection of medicine was prepared before Zhao Lanlan arrived at Dr. Zheng's home. That is to say, Zhao Lanlan had never seen the original packaging of her own drug.
In 2021, Dr. Zheng recommended a new cosmetic substance, nucleotides, to Zhao Lanlan. Dr. Cheng told her that nucleotides can stimulate cell regeneration and make the face fuller. From March to June 2021, Zhao Lanlan listened to the advice of Dr. Zheng and Ma Xiao, injected nucleotides, and received a variety of medical aesthetic items such as slimming shoulder needles, botulinum toxin, water light needles, and eye peptides, while performing micro-plastic surgery in many places such as forehead and chin. In 3 months, Zhao Lanlan spent a total of more than 116,000 yuan.
After the above series of micro-plastic surgery projects, Zhao Lanlan's face began to develop discomfort. "I can clearly see a hard lump on my right cheek." Zhao Lanlan told reporters that because hyaluronic acid and nucleotides have been injected at this site, she is not clear which drug caused it.
The reporter checked the chat records of Zhao Lanlan and Dr. Zheng and found that Dr. Zheng explained this as "the hyaluronic acid previously injected for Zhao Lanlan was not dissolved, resulting in hard blocks". Zhao Lanlan said that she consulted the beauty department of a number of top three hospitals and found that there was no "nucleotide" drug in regular hospitals, and even doctors in individual medical beauty institutions said that they had never heard of it.
On July 6, the reporter consulted Beijing United Lige First Medical Beauty Hospital. A beauty consultant told reporters that nucleotides are only an ingredient, not a separate drug. Nucleotides may be found in some nutraceuticals, but are generally not used for facial fillers. For facial filling, hyaluronic acid or autologous fat is generally recommended.
Zhao Lanlan reported to the local health commission in May this year, and a staff member told her that the case was not yet closed and it would take a long time to produce the written results. However, according to the records of the Health Commission, this Dr. Zheng is not qualified to practice as a practicing physician.
In addition, Zhao Lanlan told reporters, "Ma Xiao's friends told me that Dr. Zheng and Ma Xiao were afraid of taking responsibility when they made notes at the Health Commission, and unanimously claimed that only Ma Xiao received money, and Dr. Zheng was a voluntary free plastic surgery service." Zhao Lanlan was very angry about this statement: "I have decided to prosecute the two of them. ”
On July 24, Xu Hao, a lawyer at Jingshi Law Firm, said in an interview with reporters that what needs to be further determined in this case is what kind of drug Zhao Lanlan injected. If non-drugs are used to pass off as drugs for sale in order to achieve the purpose of deceiving consumers, the products involved in the case shall be identified as counterfeit drugs and transferred to the judicial organs for handling in accordance with the provisions of item (2) of the second paragraph of article 98 of the Drug Administration Law.
Illegal Practice of Medicine Endangers Great Medical Beauty Chaos must be rectified
In recent years, illegal medical and aesthetic accidents have occurred frequently, and there are not many cases of criminal responsibility for illegal medical practice.
According to public media reports, at about 15:00 on March 27, 2021, Wang Mouhua performed facial autologous fat injection for Li Mouxiao in a private house in a community in Sanya City, Hainan Province, and after the operation, Li Mouxiao had uncomfortable symptoms such as mouth numbness and pale face, and died after rescue was ineffective. After investigation, Wang Mouhua trained and obtained the qualification of senior beautician in Guangzhou, did not obtain the "Physician Qualification Certificate" and "Physician Practice Certificate", and the surgical site did not obtain the "Medical Institution Practice License", and did not have the qualifications to carry out medical beauty activities. After identification, li mouxiao underwent facial autologous fat injection, causing cerebral infarction secondary to lung infection, resulting in respiratory and circulatory failure death. In September 2021, the Sanya Suburban People's Court rendered a judgment on the case, and Wang Mouhua was sentenced to 10 years in prison and fined 50,000 yuan for illegally practicing medicine.
In recent years, law enforcement departments have investigated and dealt with illegal medical practices, illegal medical beauty institutions or illegal medical beauty behaviors in many parts of the country. According to media reports, in April 2021, the health supervision and law enforcement personnel of Licang District, Qingdao City, Shandong Province, found during the surprise inspection of the joint public security department that without obtaining the "Physician Practice Certificate" and the "Medical Institution Practice License", since January 2020, Li has carried out medical beauty projects such as laser hair removal, hyaluronic acid, and botulinum toxin injection for customers in the rented house without authorization, and at the same time organized training and collected training fees. Law enforcement officers seized a number of medical devices and drugs such as OPT laser freckle removal devices, Chinese identification hyaluronic acid, botulinum toxin and so on.
On June 24, 2022, health supervision and law enforcement officers of the Nanhai District Health Bureau in Foshan City, Guangdong Province, received a report that a place in Danzao Town was suspected of illegal medical practice. Law enforcement officers found that there were a large number of drugs and syringes stored in the place, the place did not obtain the "Medical Institution Practice License", and the medical practitioners did not obtain the "Physician Qualification Certificate" and "Physician Practice Certificate".
In addition, the "White Paper on judicial trial of medical beauty dispute cases from 2015 to 2019" issued by the Shanghai Changning District People's Court shows that from 2015 to 2019, the district people's courts accepted a total of 94 medical beauty dispute cases, involving mainly medical damage liability disputes, medical service contract disputes, health rights disputes, etc., of which medical damage liability disputes accounted for 82.28%.
For illegal medical aesthetic institutions, illegal medical aesthetic doctors or illegal medical aesthetic products, their crackdown and severe punishment can be based on the law. Article 38 of the Law of the People's Republic of China on Basic Medical Care and Health Promotion (hereinafter referred to as the "Health Promotion Law") stipulates that the establishment of medical institutions must obtain a practice license in accordance with law, go through examination and approval or filing procedures in accordance with the relevant provisions of the State, and also have funds, facilities, equipment and medical and health personnel suitable for the business they carry out; Article 53 of the Health Promotion Law stipulates that medical and health personnel shall obtain corresponding professional qualifications in accordance with law; Article 39 of the Law of the People's Republic of China on Practicing Physicians stipulates that whoever opens a medical institution to practice medicine or a non-physician without approval shall be banned by the health administrative department of the people's government at or above the county level, confiscate his illegal gains and his drugs and devices, and impose a fine of not more than 100,000 yuan, and revoke his practice certificate. Those who cause damage to patients shall bear the liability for compensation in accordance with law. Where a crime is constituted, criminal responsibility is to be pursued in accordance with law; Article 23 of the Eighth Amendment to the Criminal Law of the People's Republic of China stipulates that the first paragraph of Article 141 of the Criminal Law is amended to read: "Whoever produces or sells counterfeit drugs shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; Whoever causes serious harm to human health or has other serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; Whoever causes death or has other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or death, and shall also be fined or have his property confiscated"; Article 14 of the Measures for the Administration of Medical Beauty Services stipulates that personnel who have not been approved by the health administrative department and have gone through the formalities of practicing registration shall not engage in medical beauty diagnosis and treatment services.
The risk of illegal aesthetic treatment is high Consumers need to be cautious
On May 28, 2021, the National Health Commission and eight other departments jointly issued the "Notice on Printing and Distributing the Special Rectification Work Plan for Cracking Down on Illegal Medical Beauty Services", advancing in depth with a high-pressure situation and vigorously rectifying the chaos of medical beauty. But the illegal medical beauty of "everyone shouting and beating" seems to be difficult to eradicate.
The "2020 China Medical Beauty Industry Insight White Paper" released by iResearch consulting has been explored the current situation of China's medical aesthetic industry, and some of the chaos in the field of medical aesthetics exposed is worthy of attention: from 2016 to 2020, the China Plastic Surgery and Beauty Association and industry strength plan to train 50,000 transfer doctors in 5 years, which alleviates the gap to a certain extent. Under the temptation of huge demand and industry profiteering, a large number of illegal practitioners who call themselves "doctors and experts" have only begun to "illegally practice medicine" through the short-term achievements of illegal institutions.
In addition, even in legal medical aesthetic institutions, there is a phenomenon of non-compliant doctors "flying knives". According to iResearch estimates, the number of non-compliant physicians in legal medical aesthetic institutions is nearly 5,000. Based on the above data, the proportion of legal doctors in the medical aesthetic industry is only 28%, and the proportion of legal and compliant doctors is only 24%.
In addition to illegal institutions and illegal practitioners, fake injections and fake equipment can be found everywhere. iResearch research report shows that the rate of genuine injections circulating on the market is only 33.3%. That is to say, behind a genuine injection is accompanied by the circulation of at least two illegal injections (parallel goods, fake goods).
Regarding the legal consequences of illegal medical practice, lawyer Xu Hao said that his punishment is divided into three sentencing ranges: First, if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined or fined alone"; The second is that "whoever seriously damages the physical health of the person seeking medical treatment shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined"; The third is that "whoever causes the death of a person who seeks medical treatment shall be sentenced to fixed-term imprisonment of not less than ten years and shall also be fined." Without obtaining relevant medical qualifications, concealing illegal identity, and practicing medicine without medical practitioners from consumers in non-medical institutions, causing serious personal health and mental harm, civil lawsuits may be filed to require illegal practitioners to return the service fees paid and pay 3 times the compensation; Compensation for moral losses may also be claimed. Medical beauty services fall within the scope of the adjustment of the Consumer Rights and Interests Protection Law, and medical beauty service providers do not have the corresponding qualifications to engage in medical beauty services, which constitutes consumer fraud, and consumers claim punitive compensation liability accordingly (one refund and three losses), the people's court should support it.
For consumers who are "eager for beauty", Xu Hao suggested that the medical aesthetic industry has strict qualification requirements for doctors and nurses, and consumers should pay attention to the qualifications of doctors, and need to check whether they have relevant qualifications and require them to show them before receiving medical aesthetic services. Generally speaking, formal institutions are relatively more secure, and it is recommended that consumers receive services from medical aesthetic institutions with formal qualifications, and doctor qualifications can be queried on the official website of the National Health Commission.
In the event of a medical dispute, Xu Hao suggested that consumers should sign a written contract with a medical aesthetic institution to clearly stipulate the rights and obligations of the other party and the medical aesthetic services provided. In addition, consumers can also prove the existence of a legal relationship of medical service contract through invoices, receipts, transfer records, diagnosis sheets, surgical orders, risk notices, and no invoices can be complained to the tax bureau. In the case of the sales staff of medical aesthetic institutions in order to obtain customers, exaggerate publicity, or do not protect the right to know of medical aesthetic users when providing services, infringing on the rights and interests of consumers, medical aesthetic users can complain to consumer associations and market supervision and management departments, and project manuals, brochures, and product brochures can be used as evidentiary materials.
The author | Yao Yao, an all-media reporter of "Legal Person" magazine
Source| Rule of Law Daily