Recently, a resident of a city called the "120" emergency number for help. Emergency personnel refused to help carry the patient downstairs, claiming that it was not their duty to carry the patient and that they could not carry it due to medical reasons. A dispute sparked between the two sides. Subsequently, the local hospital responded that the hospital had reached a settlement with the patient's family, and the person involved had been suspended. The staff of the local health commission responded that they had paid attention to the matter, and that the emergency personnel did not have the obligation to carry the patient, and that the staffing of stretchers in medical institutions was currently being promoted. Is it the duty of emergency personnel to carry patients? After the incident, this question has sparked heated discussions.
As the primary part of critical, emergency and critical medical activities, pre-hospital first aid plays an important role in maintaining the safety and health of patients. Due to the peculiarities of the patient's physical condition, the porter needs to be professional. In addition, the emergency personnel do have reasons such as emergency rescue work, insufficient physical strength, and unclear legal obligations, which makes it difficult to carry patients in pre-hospital first aid. Focusing on this case, it is necessary to explore whether the doctor's behavior violates the provisions of the obligation and whether it should bear the liability for compensation from the perspective of the jurisprudence of administrative law and civil law.
Although the doctor's conduct did not violate the obligations under administrative law, it may not have fulfilled the duty of medical care.
According to Article 20 of the Measures for the Administration of Pre-hospital Medical Emergencies, medical ambulance personnel may engage in relevant auxiliary medical rescue work, including carrying and escorting patients. Taking into account the different levels of development and social conditions in different places, the legal provisions use the expression "may" rather than "should", and do not clearly stipulate that first responders have the legal obligation to carry patients. Therefore, from the perspective of administrative law, the doctor's refusal to carry the patient did not violate the statutory obligation and did not need to bear administrative liability.
However, the standard of conduct of the doctor is not the same as the duty of care. The determination of the duty of care for pre-hospital emergency medical care must be appropriately adjusted on the basis of the general medical duty of care and in light of the emergency. According to Article 22 of the Law of the People's Republic of China on Medical Practitioners, physicians are required to "establish professionalism, abide by professional ethics, perform the duties of physicians, and serve patients with due diligence" in their practice activities. In this case, the doctor did not have a high sense of responsibility to protect the patient's life safety and health under the premise that the patient's condition was urgent, but the doctor continued to argue with the family and refused to carry the patient, and failed to fulfill its due medical care duty.
In addition, although the mainland does not clearly stipulate that first responders have the legal obligation to carry patients, out of humanistic care and professional ethics, doctors should fulfill their responsibilities to help and guide the handling of patients, and provide professional rescue experience and effective transportation suggestions for family members in a timely manner.
If the doctor fails to fulfill the ancillary obligations of the medical service contract, there is a risk of incurring civil liability.
In civil activities, the doctor and the patient are on an equal legal footing. In view of the public interest nature of the doctor, under normal circumstances, a call by a patient to seek emergency treatment constitutes an offer, and the doctor in charge of emergency treatment has the obligation to enforce the contract. After the doctor promises to dispatch the car, the two parties will establish a medical service contract relationship, and the doctor shall take reasonable measures to actively perform the contractual obligations.
Article 509 of the Civil Code of the People's Republic of China stipulates that "the parties shall fully perform their obligations in accordance with the agreement." The parties shall follow the principle of good faith and perform obligations such as notification, assistance, and confidentiality in accordance with the nature, purpose, and transaction habits of the contract. Therefore, after the doctor and the patient have reached a contractual relationship with the patient, they should perform ancillary obligations such as assistance and protection.
In this case, although the doctor's conduct did not violate the statutory obligations and contractual obligations, the doctor's failure to explain in advance that it was unable to carry the patient and that it did not assist the family in transporting the patient to seek medical treatment as soon as possible violated the ancillary obligations of the medical service contract, which constituted an act of "incomplete performance of the contract", and should bear the liability for breach of contract such as compensation for losses in accordance with Article 577 of the Civil Code of the People's Republic of China.
In addition, the principle of no-fault liability applies to medical service contract disputes, and there is no need for the existence of damages, as long as the doctor is in breach of contract, he should be liable. Therefore, in this case, the patient can request the doctor to compensate for the losses caused by the patient's failure to perform the ancillary obligations such as assistance and protection to the extent that the patient can fulfill his interests.
In the future, in order to effectively prevent the occurrence of similar incidents, the national level should actively promote the legislative work of pre-hospital medical emergency, and urge all localities to improve first-aid facilities, establish a team of stretcher bearers and conduct professional training as soon as possible in accordance with the requirements. At the level of medical institutions, it is necessary to strengthen the education of professional responsibilities and communication skills of first aid personnel, and grasp the situation of patients in advance to judge the needs of emergency allocation.
Text: Liang Yufan, East China University of Political Science and Law, Wang Yue, School of Medical Humanities, Peking University
Editor: Ning Yanyang Guan Zhongyao
Proofreading: Ma Yang
Review: Qin Mingrui, Xu Bingnan