Article 1222
In any of the following circumstances, the medical institution is presumed to be at fault if the patient suffers damage in the course of diagnosis and treatment:
(1) Violating laws, administrative regulations, rules, and other provisions related to diagnosis and treatment norms;
(2) Concealing or refusing to provide medical records related to the dispute;
(3) Loss, falsification, alteration, or illegal destruction of medical records.
1. The main purpose of this article
This article is about the circumstances in which the fault of a medical institution is presumed.
II. Evolution of the Provisions
With regard to the presumption of fault of a medical institution, article 58 of the original Tort Liability Law stipulates that: "If a patient suffers damage, the medical institution shall be presumed to be at fault due to any of the following circumstances: (1) violating laws, administrative regulations, rules and other relevant provisions of diagnosis and treatment norms; (2) concealing or refusing to provide medical records related to disputes; (3) falsifying, tampering with or destroying medical records." This provision basically retains this provision, but there are four important amendments: first, the original "patient has been harmed" is amended to "the patient has been damaged in the course of diagnosis and treatment", which further clarifies that the damage suffered by the patient must be caused by the diagnosis and treatment activities, and the expression is more rigorous; second, the phrase "due to any of the following circumstances" is changed to "in any of the following circumstances" The significance of this article is to negate the causal relationship requirement in this article, that is, when making a presumption of fault in accordance with this article, the question of whether there is a causal relationship between the diagnosis and treatment act and the damage should not be considered; third, the word "destruction" is amended to "illegal destruction", which is not only more in line with the actual situation, but also more convenient for practical operation; and fourth, the "loss" of medical record data is added as a situation of presumption of fault of medical institutions.
3. Interpretation of Provisions
This article provides for the presumption of medical technical negligence.
The principle of fault liability applies to the liability for medical technology damage, and the plaintiff bears the burden of proof. In the three circumstances provided for in this article, the plaintiff does not need to provide evidence to prove that the medical personnel are directly presumed to have medical technical negligence.
(1) Violating laws, administrative regulations, rules, and other provisions related to diagnosis and treatment norms. This presumption of negligence is not actually a presumption, but a proof that the medical personnel are negligent. The reason is that to prove the medical negligence of the medical personnel is to prove that the medical personnel objectively violated the laws, administrative regulations, rules and other relevant diagnosis and treatment norms that should be followed, and as long as there is definite evidence, it can be proved that the medical personnel subjectively violated the medical level at that time and are negligent. The law directly stipulates that it is a cause for presumption of negligence, and if the injured patient can prove this situation, it is presumed that the medical personnel are negligent in medical technology and should bear the liability for medical technology damage.
(2) Concealing or refusing to provide medical records related to the dispute. This means that if a medical institution or medical personnel refuses to provide medical records related to the dispute by inaction when they need relevant medical records to prove whether the medical personnel have medical technical negligence after the occurrence of medical damage, it is directly presumed that the medical personnel are negligent and no further evidence is required to prove it. The reason is that the refusal of the medical personnel to provide evidence of the relevant medical records under their control is equivalent to the refusal to present evidence under the burden of proof, and thus the presumption in the opposite direction in accordance with the law is that the medical personnel are at fault. This not only resolves disputes, but also serves as a warning to all medical institutions and their medical staff that they must cooperate with the judiciary in providing relevant evidence, whether it is in their favor or not.
(3) Loss, forgery, tampering or illegal destruction of medical records. After the occurrence of a medical injury liability dispute, as long as the medical institution and its medical personnel lose, falsify, tamper with or illegally destroy the medical records, whether intentionally or negligently (the loss is negligence, the forgery, tampering and illegal destruction are intentional), the determination of liability for the medical damage liability dispute will be deprived of objective documentary evidence. Therefore, it should be presumed in the unfavorable direction of the party that caused the loss of evidence, and the medical personnel should be directly presumed to be negligent, and they should bear the tort liability. It is also a warning to all medical institutions and their medical staff: do not do stupid things in the event of medical damage, in an attempt to pass the buck, when the actual effect is the opposite.
4. Cases
Liu Moufeng et al. v. Shougang Hospital, a dispute over liability for medical damages
Facts: Meng Mouping was sent to the emergency department of Shougang Hospital by his family, and then Meng Mouping went to the Intensive Care Medicine Department of Qian'an Hospital of Traditional Chinese Medicine for treatment, and died after being discharged. Meng Mouping's family member, Liu Moufeng, and others filed a lawsuit with the court of first instance, requesting that Shougang Hospital be sentenced to compensate for losses. The court of first instance held that it was reasonable for Meng Mouping's family to question the medical records beyond the statute of limitations, and that the incomplete medical records could not be evaluated, so Shougang Hospital should be found to be at fault and determined that it should bear 30% of the compensation liability. Shougang Hospital was dissatisfied with the first-instance judgment and appealed. The court of second instance held that when Liu Moubao went to the medical record room of Shougang Hospital for the first time to copy the medical records, the medical records room did not make copies of the medical records for him, and it was reasonable for him to challenge the emergency medical records. In addition, when the patient Meng Mouping was discharged from the PLA General Hospital, he had been preliminarily diagnosed as in critical condition and was advised to arrange amputation surgery as soon as possible. However, after the patient Meng Mouping was admitted to Shougang Hospital, the hospital did not make further treatment. In the case that the connection between Shougang Hospital's failure to deal with the patient and the patient's death when the patient was critically ill cannot be ruled out, it is reasonable to determine that Shougang Hospital bears certain responsibility. The court of first instance decided that Shougang Hospital should bear 30% of the liability based on the facts of this case, and it should be upheld.
5. Analysis
This case involves the presumption of negligence of medical institutions in the liability for medical technology damages. In general, it is up to the patient to prove that the medical institution is at fault. However, medical institutions have a better position when it comes to providing basic medical dossier materials such as medical records. In order to balance the doctor-patient relationship and reduce the burden of proof on the victim by using the rules of evidence, article 58 of the Tort Liability Law provides that there are three circumstances in which a medical institution is directly presumed to be at fault. Article 1222 of the Civil Code, on the basis of Article 58 of the Tort Liability Law, adds the loss or illegal destruction of medical records as a presumption of medical technical negligence. In this case, Shougang Hospital concealed the emergency medical records dated February 27, 2017, which met the circumstances stipulated in the Tort Liability Law, and Shougang Hospital should be presumed to be at fault. Such a presumption can not only resolve doctor-patient disputes, but also serve as a kind of supervision for other medical institutions and their medical personnel, requiring them to actively cooperate with the judicial authorities to provide relevant evidence.