Analysis of fault in "wrongful birth" tort litigation
Fault refers to an attributable psychological state of the perpetrator, which is divided into two forms: intentional and negligent. Intentionality refers to the state of mind in which the perpetrator foresaw the consequences of the damage and hoped or allowed the result to occur.
Negligence refers to the state of mind in which the actor should have foreseen the occurrence of the consequences of the damage, but because of negligence did not foresee or had foreseen it, he credulously believed that the occurrence of the harmful consequences could be avoided.
The reason why the psychological state of intentionality and negligence is reproachable lies in the illegitimacy of this psychological state, and the perpetrator has control and initiative over the occurrence of damage, and the damage result can be avoided.
Article 1218 of the Civil Code stipulates that the patient bears the burden of proof of the tort elements in general medical torts, and Article 1222 stipulates the conditional presumption of fault, thus balancing the burden of proof for both doctors and patients.
The attribution system of medical disputes in mainland China is composed of the principle of fault liability and the principle of presumption of fault. "Improper birth" tort liability dispute cases are a special kind of medical tort disputes, but the current law does not make special provisions for such cases, so the principle of attribution of medical tort disputes is adopted, that is, generally speaking, the principle of fault liability is adopted in "improper birth" tort liability dispute cases.
First of all, determining that a medical institution is at fault is to judge whether the medical staff's diagnosis and treatment behavior violates the duty of care, and the standard should be based on the provisions of laws and regulations, and the fault of the medical institution is generally manifested as negligence.
According to Article 57 of the Tort Liability Law, which is now stipulated in Article 1221 of the Civil Code, and Article 16 58 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Medical Damage Liability Dispute Cases, it can be seen that the obligation of diagnosis and treatment prescribed by law is the source of the reasonable duty of care of medical personnel.
At the same time, this duty of care is limited to the level of medical technology at the time, in other words, if the problem that the medical personnel did not notice exceeds the level of medical technology at that time, they are not liable for the damage caused by it, which is the reason for the exemption of the medical practitioner. Of the 109 cases sampled in this paper, only 3 cases provide a more detailed demonstration of the duty of care of medical practitioners.
The first case was (2016) Ji 0202 Minchu No. 3104 Civil Case, in which the judge clearly pointed out that the manifestation of the doctor's failure to fulfill his duty of care was: the prenatal diagnosis report was not issued by the physician with prenatal diagnosis qualifications, the relevant diagnosis was not operated by a physician with prenatal diagnosis qualifications, the medical prescription was a tertiary professional diagnosis and treatment hospital, and the color ultrasound diagnosis at the sixth month of pregnancy should show whether the fetus had congenital heart disease but did not see it.
It was further pointed out that "obstetricians should pay more attention to their specialized areas than general physicians, and the attending physician of the defendant unit did not fully perform the duty of care and notification due to screening during the prenatal screening for Han Bing".
The second case is (2016) Gui 0303 Minchu No. 1279 Civil Case, in this case, the doctor's fault lies in not recording the development of the fetus's hands, the doctor's failure to see the hands during the ultrasound examination, should be noted, and separately inform the fetal parents in writing of the potential risk of malformations, but the doctor did not inform, resulting in the loss of the possibility of further examination and the right to know the choice to terminate the pregnancy.
The third case is (2017) Min 0304 Minchu No. 2942 Civil Case, in this case, the mother of the defective child has a family history of malformation production, which meets the situation of Article 4 "Family Malformation Production History" of the Ultrasound Medicine Indications on page 164 of the Ultrasound Medical Branch of the "Clinical Technical Operation Specification" compiled by the Chinese Medical Association.
Accordingly, the medical prescription should have foreseen the possibility that the fetus would be born with hypoplasia, and then conducted a more detailed examination of the fetus, but the medical prescription failed to fulfill a high degree of care and prudence, and the fault caused infringement to the normal exercise of the right to know and the right to eugenics and reproductive choice by the parents of the defective child.
In addition, to determine whether a medical institution is medically wrong, it should comprehensively consider the patient's condition and individual differences and the local medical level at that time, for example, in the (2019) Chuan 1523 Minchu No. 932 Civil Case, the court adopted the defense reason put forward by the defendant hospital, specifically on the grounds that as a county-level medical institution, its medical level and detection technology were difficult to recognize and treat hereditary diseases in the fetal stage in the year of the prenatal examination.
In addition to the above 3 cases, none of the other cases sampled in this article demonstrate in detail the duty of care of the medical prescription, but directly adopts the opinion of the expert agency. The tort liability dispute of "improper birth" generally adopts the principle of fault liability, and the premise for the establishment of infringement in the case of "improper birth" is that the requirements for establishing tort liability are met, that is, the tort can only be established if the medical party is subjectively at fault, which is one of the most critical identification factors.
Based on the 109 cases extracted, this paper summarizes the following common medical prescription fault situations:
First, in violation of Article 22 of the Measures for the Administration of Prenatal Diagnosis Technology, the medical practitioner fails to issue a prenatal diagnosis report by more than 2 qualified practitioners, and there is a situation where an unqualified doctor signs on his behalf;
Second, the parents were careless during the examination, failed to accurately and completely describe the results of the prenatal examination, and failed to accurately and comprehensively indicate the doubts in the examination, resulting in parents failing to obtain relevant information in time, conduct further examinations or exercise the right to choose pregnancy;
Third, before and after the important links of the prenatal examination, parents were not adequately informed of the risks; Fourth, when the level of medical development is sufficient to detect defects, carelessness, omission and misdetection, failure to detect defects in the fetus.
For example, in the (2013) Zhong District Fa Min Chu Zi No. 07224 civil case, thalassemia (severe disease) suffered by defective children is a serious hereditary disease, and according to the existing medical level, it is likely to be detected prenatally through conventional medical examination methods such as genetic tests and blood tests.
However, the medical prescription did not routinely carry out the necessary examinations and inform the parents of the importance and risks of the relevant examinations during the preconception examination, and did not carry out preconception screening for thalassemia during the preconception examination of parents in areas with high incidence of thalassemia, and failed to fully fulfill the duty of high care and performance of the obligation of risk notification.
Analysis of the defense of "improper birth" infringement lawsuit
First of all, the concept of the cause of defense is explained, the cause of defense is also known as the cause of exemption, the cause of illegality, the reason for defense, etc., in the mainland tort law works, often use the term "cause of defense", Professor Wang Liming believes that the cause of defense is the defendant against the plaintiff's claim to prove that the plaintiff's claim can not be established or is not completely established, once the defense is established, it will lead to the reduction or exemption of liability.
Professor Yang Lixin believes that the cause of defense refers to the fact that the defendant proves that the plaintiff's claim is not established or is not fully established. In tort law, the cause of defense is raised against the request for civil liability, so it is also called the cause of exemption or mitigation of liability.
In mainland laws and regulations, the cause of defense has been typed and fixed, and the law stipulates it in the form of an enumeration. The function of the cause of defense is obviously not limited to this, and the defense includes the defense that the relationship between the debt is not established, the defense in performance and the defense that the relationship of the debt has been extinguished, and in particular, some defenses only play a temporary deferring role, such as the defense of first performance and the defense of simultaneous performance.
This article adopts this broad sense of "cause of defense", and in the previous chapter, several common medical defense grounds have been summarized. These defenses are divided into whether the infringement is established and the liability is serious.
Since the tort case of "improper birth" is a medical damage dispute with strong medical expertise, judges do not have such professional knowledge, and in judicial practice, they must rely on the opinions of specialized appraisal institutions to judge cases.
Generally speaking, the professional opinion of the appraisal institution will clearly indicate whether the medical institution has infringement, causation, fault and fault participation in the prenatal examination in the case, and the judge will refer to this conclusion to judge the case, which will bring a dilemma:
If the judge fully adopts such a conclusion, there is a suspicion that the judicial power has not been exercised due diligence, and if the judge examines the appraisal opinion in detail, there is a dilemma of insufficient professional knowledge.
Judging from the specific expressions of the 109 first-instance judgments extracted, there are three more typical situations in judicial practice: First, in most cases, the opinions of the appraisal institutions are relatively brief, and the original defendant has no objection to the appraisal opinions, and the judges basically directly adopt the appraisal opinions, and do not make more legal analysis of the appraisal opinions.
It is usually expressed as "the appraisal procedure is legal, and both the plaintiff and the defendant have recognized the above appraisal opinion, so this court affirms the appraisal opinion";
Second, the appraisal opinion is more detailed, the plaintiff and the defendant disagree with the conclusion of the appraisal opinion, and require the appraisal agency to further explain, the judgment shows the specific content of the cross-examination in detail, and the detailed presentation of the certification process can give people a glimpse of the specific certification process of the appraisal institution's medical behavior, so as to consider whether the determination is reasonable and legal.
For example, in the (2018) Jing 0102 Minchu No. 41243 Civil Case, the appraisal agency discussed the appraisal opinions separately in different time periods and by requirements, and the plaintiff objected to this and applied for written questioning, and then the appraisal agency replied one by one;
Third, the judge conducted a more detailed legal analysis of the appraisal opinion, and came to a conclusion contrary to the appraisal opinion. For example, in the (2013) Diemin Chu Zi No. 1080 Civil Case, the appraisal agency held that the medical institution involved in the case failed to make a clear diagnosis in the diagnosis and treatment activities involved in the case.
It is beyond the current capacity of the hospital, and there is no fault and no tort liability. The judge held the opposite opinion, the judge held that the medical institution should have paid attention to the individual particularity of the plaintiff and recommended further diagnosis, but failed to do so, and there was a wrongful act, which actually put a higher degree of duty of care on the medical institution.
The essence of the opposing opinion of the judge and the expert is that the two have different understandings of the degree of care duty of the prenatal inspection institution.
The "improper birth" infringement lawsuit is eligible for the plaintiff's determination
When individual rights are undermined, filing a civil lawsuit is one of the most important means and ways for individuals to resolve disputes and obtain relief. In a specific case, the crucial nature of the litigation is obvious in the case of what qualifications and conditions are required to initiate the proceedings, and who bears the legal consequences arising from the commencement of the proceedings.
Only qualified parties, i.e. persons who are qualified to sue or respond to specific lawsuits, are entitled to become plaintiffs or defendants in their own name and bear the consequences of litigation. There is still controversy in the practical and theoretical circles as to who is the qualified party in the "wrongful birth" tort liability dispute case.
Such cases are usually found in which the parent and the defective child are three co-plaintiffs, two of them as co-plaintiffs or one as a separate plaintiff. However, not all fathers, mothers and defective children are entitled to bring infringement actions. This paragraph will analyze the eligibility of the mother, father and defective child one by one.
First, the mother is a qualified plaintiff in the "wrongful birth" tort liability dispute. The purpose of pregnant women's prenatal examination is to obtain health information such as fetal development through advanced medical means to decide on subsequent health care measures or terminate pregnancy, and the medical fault of the doctor obviously hinders the realization of the purpose of medical care for pregnant women.
Therefore, pregnant women are eligible plaintiffs in "improper birth" tort liability disputes. This point is not controversial in practical and theoretical circles.
Second, the father is a qualified plaintiff in the "wrongful birth" tort liability dispute. The father's rights are also clearly undermined by "improper birth", the maintenance of the defective child is borne by both parents, and the increased burden can lead to the depletion of the property and morality of the spouses, so the father can sue as the plaintiff.
Third, the defective child is not a qualified plaintiff in a "wrongly born" tort liability dispute. First of all, the rights and interests of the defective child have not been infringed, and the physiological defects of the defective child are spontaneously formed due to genetic and other factors, not caused by the medical negligence of the medical institution, and the medical institution has not violated the right to life, health and other rights of the defective child.
Second, there is a logical impediment to the defective child as a plaintiff. Natural persons only have civil capacity after birth, and the fetus does not have civil capacity to decide whether it was born or not, so it cannot file a lawsuit because its birth is "improper".
Finally, the damage claimed by the defective child is that he should not have been born, which is a "lawsuit for improper life", not a "lawsuit for improper birth" as this article will study.
The "improper life lawsuit" has not been recognized by mainland judicial practice, and the academic circles have a negative attitude towards such litigation, because from the perspective of social ethics, the value of life cannot be underestimated due to the existence of physical defects, so defective children have no right to claim that they are not born.