At present, there are more and more cases where appraisal institutions do not accept medical injuries because they have not conducted an autopsy, which leads to the focus of the trial of medical disputes becoming whether the hospital has fulfilled the obligation to inform the relevant provisions of the autopsy, so what are the hospital's obligations to inform?
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1. The laws and regulations related to autopsy (all here).
1. Article 23 of the Regulations on the Prevention and Handling of Medical Disputes: In the event of a medical dispute, the medical institution shall inform the patient or his close relatives of the following matters...... If the patient dies, the close relatives shall also be informed of the provisions on autopsies. Article 26: Where a patient dies and both the doctor and the patient have objections to the cause of death, an autopsy shall be conducted within 48 hours of the patient's death; The autopsy shall be upon the consent of the deceased's close relatives and signed, and where they refuse to sign, it is to be viewed that the deceased's close relatives do not consent to the autopsy. Where the autopsy is not agreed to or delayed, exceeding the prescribed time and affecting the determination of the cause of death, the party who does not agree or delay is to bear responsibility. Autopsies shall be conducted by institutions and professional and technical personnel who have obtained corresponding qualifications in accordance with relevant state provisions. Both the doctor and the patient can appoint a representative to observe the autopsy.
2. Article 18 of the "Regulations on the Handling of Medical Accidents" If a patient dies and both the doctor and the patient cannot determine the cause of death or have objections to the cause of death, an autopsy shall be conducted within 48 hours after the patient's death; The autopsy shall be with the consent and signature of the deceased's close relatives. Autopsies shall be conducted by institutions and pathological and dissecting professionals who have obtained corresponding qualifications in accordance with relevant state provisions. Institutions undertaking autopsy tasks and pathological dissection professionals have the obligation to conduct autopsies. Parties to a medical malpractice dispute may invite forensic pathologists to participate in the autopsy, or may appoint a representative to observe the autopsy process. Where the refusal or delay of the autopsy exceeds the prescribed time and affects the determination of the cause of death, the party who refuses or delays is to bear responsibility.
2. Legal Interpretation.
1. Medical institutions do not have the obligation to inform the relevant provisions of the autopsy after the death of the patient, which is limited to two situations: the occurrence of a medical dispute and the disagreement between the doctor and the patient on the cause of death. At the same time, if the patient dies in the hospital, the hospital should inform the cause of death, whether it is clear or unclear, and the patient should know whether the cause of death should be raised.
2. Although the autopsy time window is set as 48 hours at room temperature and 7 days under freezing conditions, "if the autopsy is refused or delayed, exceeding the prescribed time, affecting the determination of the cause of death, the party who refuses or delays is to bear responsibility." That is, only if the determination of the cause of death is affected, the party who refuses or delays is liable, and if the cause of death can still be determined, the passage of the autopsy time window should not be used as a defense for not approving the autopsy conclusion, because in practice, there are many cases where the cause of death is determined through the autopsy for more than a week, a month, or even half a year.
3. The autopsy unilaterally commissioned by the patient meets the requirements and has legal effect, as long as it is carried out by institutions and pathological and anatomy professional and technical personnel who have obtained corresponding qualifications in accordance with the relevant provisions of the state, whether the hospital needs to participate is not a mandatory provision, and "both doctors and patients may appoint representatives to observe the autopsy process", not should, but can. There is no clear legal provision on whether the autopsy is a medical injury appraisal item (see Articles 11 and 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Liability for Medical Damages), and according to the circumstances of the autopsy in other civil and criminal cases, there is no legal provision that interested parties must participate in the autopsy, so the autopsy unilaterally commissioned by the affected party should have legal effect.
4. There is no clear legal provision for the determination of medical disputes, and in practice, the basis for a medical dispute is usually based on the fact that the patient has filed a claim for compensation with the doctor, complained to the hospital or administrative agency, or carried out the act of sealing or copying complete medical records; Therefore, if the relevant provisions of the autopsy are not informed, especially if the patient did not die in the hospital in dispute, the patient should promptly initiate the complaint procedure and inform the hospital of the time of the patient's death or the death diagnosis issued by the other hospital.
3. The hospital shall inform the specific content of the relevant provisions on autopsy.
1. What is the specific diagnosis of death of the patient, what are the causes of the patient's death (direct and indirect causes), and whether the cause of death is clear, so that the patient can consider whether to raise an objection to the cause of death. If only the notification of "death of the patient" is written, without any diagnosis, it should be considered that the notification is not in place.
2. Inform the specific content of Articles 23 and 26 of the above-mentioned "Regulations on the Prevention and Handling of Medical Disputes" or Article 18 of the "Regulations on the Handling of Medical Accidents", if only the standard clause is written on the notice "In accordance with the relevant laws and regulations, an autopsy shall be conducted to determine the cause of death", and the time window, the institution undertaking the autopsy task, and the legal responsibility or consequences of not performing an autopsy are not notified, it should be considered that the notification is not in place.
To sum up, the current law on the notification of the relevant provisions of the autopsy of medical damages, the law is not so sound, and the court is also constantly exploring, although the above-mentioned words of lawyer Lin's family are completely based on the legal provisions and practice, it does not mean that the judge will hold the same view and apply, but it can provide debate ideas for the patient's friends.