Once you get into a medical dispute, it is difficult to get out of it.
Source | Medical Pulse Communication
Author | The rushing emergency Lao Liu
"A judgment sets Chinese medicine back 100 years." "The court ordered the defendant to bear 4.77 million yuan in full compensation."
When the author Lao Liu saw these contents, he was really shocked!
What kind of fault did the defendant have? Is there sufficient evidence to hold the defendant fully responsible? What is the responsibility of the defendant? Today, let's find out.
Event recap
More than 10 years ago, the patient Zhang was weak due to chest tightness and shortness of breath, and went to the traditional Chinese medicine clinic of a company on October 25, and was diagnosed with "liver and blood deficiency, chest paralysis, and heart and kidney incompatibility", and the doctor prescribed a seven-day decoction for him, and the prescription contained "Banxia 40g".
On November 1, Zhang went to the doctor again, and was diagnosed with "qi deficiency and qi stagnation, chest tightness and shortness of breath, and aggravation when moving", and the doctor prescribed him a decoction for three days, and the prescription contained "Banxia 12g", and told him to "go to the hospital for medical treatment in time if the effect is not obvious".
On November 15, Zhang went to a local tertiary hospital for examination, and the results showed that the creatinine was seriously excessive (755umol/L) and the hemoglobin was seriously low. After visiting a number of hospitals, he was finally diagnosed with "chronic glomerulonephritis, chronic renal insufficiency (uremia stage), renal anemia, and renal hypertension." ”
After more than a year, Zhang was hospitalized several times, and finally relied on regular dialysis treatment a year and a half after being diagnosed with uremia.
Zhang believes that the doctor violated the diagnosis and treatment routine by not only failing to fully inform and explain the drugs in the prescription when he knew that the drugs in the prescription were nephrotoxic, but also causing kidney damage due to overdose medication without conducting renal function tests, resulting in the adverse consequences of uremia.
So the patient, Zhang, sued the company to the court for compensation. The total amount of claims for medical expenses, lost work expenses, nutrition expenses, disability compensation expenses, follow-up treatment expenses, and mental injury expenses is about 6.5 million yuan.
The court entrusted the appraisal center to conduct a fault appraisal in this case, and after Zhang's condition stabilized, a disability appraisal was conducted.
Case appraisal
The appraisal agency makes a forensic medical appraisal opinion, and the appraisal opinion is:
1. There are deficiencies in the doctor's duty of care, and there are certain defects and deficiencies. Among them, "Banxia" is a toxic traditional Chinese medicine, and the dosage is 40g, and its dosage exceeds the specified range, and the situation of kidney damage directly caused by the drug used is not sufficient according to the current research results and relevant data, and cannot be determined; However, the possibility of aggravating renal damage/burden cannot be ruled out, and some defects should be considered.
2. The medical party is negligent in the medical behavior of the person being evaluated, and the causal relationship between it and the harmful consequences cannot be ruled out, and the specific degree of participation cannot be clearly given.
3. The person being evaluated is currently assessed as having a fourth-grade disability in the compensated stage of renal dysfunction, and the disability rating after kidney transplantation in the future needs to be determined in conjunction with the results of the transplanted kidney function test.
4. The person being evaluated has a special medical dependence on the existing condition, that is, he or she will need continuous regular dialysis treatment in the future. The duration of this treatment is generally up to the time of allogeneic kidney transplantation, and after kidney transplantation, the identified person has medical dependence on long-term use of drugs to suppress immune rejection, and the specific situation is subject to postoperative evaluation.
5. Where it is difficult to make a specific and clear assessment of the appraisal's future medical dependency expenses due to the large and complex factors involved, and the dynamic characteristics of the appraisal, it is recommended that the amount of relevant expenses confirmed in the first half of the year or every month be used as the reference base for calculating the appraisal, so as to determine the basis and standard for future medical dependency expenses.
6. Because the person to be evaluated needs to receive regular dialysis treatment (mainly hemodialysis), and has the need to receive nutrients after dialysis, in view of the professionalism of the confirmation of nutritional standards, it is recommended to determine the specific standards according to the plan formulated by the clinical dietitian.
In the end, the court ruled that the doctor should bear 100% responsibility, compensating Zhang for medical expenses, lost work expenses, transportation expenses, hospital meal subsidies, and disability compensation totaling more than 100 yuan, compensating for follow-up treatment and nutrition expenses totaling 3.73 million yuan, and compensating 40,000 yuan for mental damages, totaling 4.77 million yuan.
The doctor was not satisfied with the verdict and appealed. After trial, the court of second instance held that when Zhang sought medical treatment, the doctor did not carefully understand and record Zhang's past medical history and the four diagnoses of traditional Chinese medicine, nor did he conduct necessary physical examinations and auxiliary examinations; Moreover, when the doctor learned that Zhang might have a problem, he did not conduct further targeted examinations, and the basis for medication was insufficient, which violated the doctor's duty of care and was at fault, and the fault had a certain causal relationship with Zhang's current damage consequences.
Since there is no data on Zhang's renal function before the visit, it is impossible to judge the specific participation. The doctor argued that since the medication was only 2 months before the uremia, it was inferred that Zhang had a chronic renal function disease before the visit, and the disease had nothing to do with the prescription prescribed by the doctor, and there was no basis for the judgment to bear full responsibility.
However, the court of second instance held that the length of time taken for taking the drug was not the criterion for defining the diagnosis of acute and chronic renal impairment, and the inference that the damage must be unrelated to the medication because of the proximity to the time of taking the drug could not be established. In addition, although the doctor suggested that Zhang may have fallen ill before taking the medicine, Zhang denied it, and the doctor failed to provide evidence to prove that Zhang had a medical history, nor could it determine Zhang's kidney function before taking the medicine.
The responsibility for the inability to determine Zhang's physical condition before the treatment lies with the doctor, so the corresponding adverse consequences should be borne for this, that is, in the case that his diagnosis and treatment fault and participation in Zhang's damage consequences cannot be judged, he shall bear full liability for Zhang's damage consequences.
In the end, the court of second instance rejected the appeal and upheld the original judgment.
When "Traditional Chinese Medicine" Encounters "Medical Damage"
Many people complain that Chinese medicine is becoming less and less like Chinese medicine now, and doctors not only wear stethoscopes, but also often prescribe various laboratory tests and imaging tests, such as CT, MRI, etc. Students in the School of Traditional Chinese Medicine not only learn the theories of Chinese medicine, but also learn Western medicine courses such as physiology, pathology, internal medicine, and surgery.
Compared with these modern Chinese medicines, people appreciate traditional Chinese medicine more, there is no stethoscope, no physical examination, no blood test, no MRI CT, only three fingers and one probe, a prescription, or cupping and acupuncture, can remove diseases and strengthen the body. The judgment of the condition depends on looking, smelling, asking, and cutting, and relies on the subjective judgment of the doctor's experience.
Most traditional medical centers (TCM hospitals) are a Chinese medicine pharmacy with a table next to it, and Chinese medicine practitioners are hired to sit in the hall for consultation. Although the company in this case has the qualification of a traditional Chinese medicine clinic, it is still set up in accordance with the traditional Chinese medicine hall, presenting a large Chinese medicine pharmacy, and the Chinese medicine doctor sits in the hall for consultation, and does not have modern examination equipment.
Compared with the well-equipped facilities of large TCM hospitals, small TCM clinics are more "traditional" and convenient, but at the same time, they also come with more risks. In the event of a dispute, especially in court, the doctor is required to provide evidence to prove that his or her diagnosis and treatment behavior is reasonable and has nothing to do with the patient's damage outcome.
Although the development of traditional Chinese medicine has a history of thousands of years, the management of traditional Chinese medicine, the judgment of damage facts, the inference of negligence, the inference of causality, and the division of the proportion of responsibility are still carried out in accordance with the appraisal standards of Western medicine. There is no independent systematic evaluation standard for the diagnosis and treatment of TCM, and there is no expert group for each specialty of TCM.
In the process of adjudication of TCM-related disputes, it is still necessary to judge the diagnosis and treatment behavior through expert appraisal, and it is usually forensic experts who lead the appraisal. The main evidence of identification is the medical record material, which mainly contains objective evidence.
For traditional Chinese medicine, the medical records of objective evidence, the inpatient medical records in the traditional Chinese medicine hospital are basically written in accordance with the medical records of Western medicine, but the medical records in the outpatient clinic of traditional Chinese medicine are much simpler, and many Chinese medicine pharmacies do not even have medical records, only one prescription.
When a patient has a problem and challenges the TCM with the results of the visit to the Western Hospital (damage result), the TCM is often unable to prove its innocence (insufficient evidence). In addition, for each patient, each doctor's diagnosis results, pulse judgment, and pathogenesis analysis are often different, and it seems that it is difficult to have a unified standard for TCM diagnostic standards and treatment standards.
Therefore, once a TCM is involved in a medical dispute, it is difficult to get out of it.
In the past, there were many related cases, the common ones were kidney damage and liver function damage caused by traditional Chinese medicine, or the diagnosis and treatment of menstrual irregularities by traditional Chinese medicine, but in fact, it was during pregnancy, and there was sudden death while taking traditional Chinese medicine. Such cases are difficult to identify and adjudicate, and at the same time, TCM practitioners also feel wronged and patients feel aggrieved.
How can TCM uphold tradition while guarding against risks?
Since TCM students have learned about medical accident prevention in the process of medical school education, and then may encounter various disputes in the process of practice, they have also gained some experience in self-protection. Therefore, TCM students who have graduated from medical school are more and more like Western medical students, and TCM is more of a doctor who has obtained a license to practice through inheritance.
Although Lao Liu's understanding of TCM is limited, and he communicates more with TCM doctors as a patient, he still wants to analyze it from the perspective of medical fault determination.
1. The practice of traditional Chinese medicine should comply with the management regulations of the health administrative department.
No matter how a TCM practitioner obtains a medical qualification, it is necessary to obtain a doctor's qualification certificate and registration certificate, practice in the registered place of practice, and carry out diagnosis and treatment behaviors consistent with the qualifications. Self-taught or self-taught practitioners who practice independently without being "officially certified" will be suspected of "illegally practicing medicine", and will be directly presumed to be at fault in the event of a dispute. However, some pharmacies set up sitting doctors, but do not have a medical institution practice license, and engage in diagnosis and treatment services without permission, which is also illegal to practice medicine.
Therefore, TCM physicians need to be registered in formal medical institutions with TCM business after completing their qualifications, and can visit pharmacies and other clinics according to the current policy, but they must verify their practice licenses and go through multi-site practice before they can practice legally.
2. There is no diamond to do porcelain work, there is something to do.
Compared with Western medicine, TCM physicians rely more on subjective judgment, and personal understanding, knowledge, and experience are very important. In clinical work, it is necessary to have a certain understanding of one's own level, which diseases can be treated, and which patients cannot be treated, and must be distinguished. Transferring critically ill patients to higher-level hospitals for complete examination in a timely manner can greatly reduce the risk of employment.
3. The use of drugs should be cautious and must comply with the provisions of the pharmacopoeia.
Traditional Chinese medicine is also divided into toxic drugs, and there are also relevant instructions for the use of drug dosage, indications, contraindications, and compatibility contraindications. As a TCM physician, you need to be cautious about the compatibility of drugs, adjust the dosage, and do not rush forward.
In this case, there is 40g of Banxia in the prescription, which exceeds the application dose, although some literature points out that taking Banxia in large doses for a long time will cause kidney damage, but experts also explain that the toxicity of Banxia in the prescription is greatly reduced after processing, and the toxicity of a single drug does not mean that the prescription is toxic, and many prescriptions of traditional Chinese medicine are reduced by drug compatibility.
4. Attention should be paid to the writing and preservation of medical records.
Although there are also relevant standards for the writing of TCM medical records, many doctors do not strictly implement them in clinical work. The writing of medical records in traditional Chinese medicine varies greatly, and it should be necessary to record the chief complaint, the content of the four diagnoses, diagnosis, treatment principles and medications. It is important to write down some suggestions, such as dietary contraindications, follow-up requirements, and those who need to go to a western hospital for examination.
The debate between modern Chinese medicine and traditional Chinese medicine is of little significance, and how to ensure the safety of diagnosis and treatment is worth thinking about for all doctors.
As a patient, you may want to have fast and effective diagnosis and treatment of traditional Chinese medicine, but as a doctor, you hope that your peers will practice carefully, handle carefully, refer in a timely manner, standardize the use of drugs, and cherish it.
Column consultant lawyer: Liang Yu, graduated from China University of Political Science and Law, director and partner of Beijing Mili Law Firm. Liang Yu's team focuses on civil and commercial legal litigation, corporate legal counsel, etc., covering equity investment, medical disputes, intellectual property rights, etc., and its rich practice experience effectively protects the legitimate rights and interests of clients and provides effective legal services for clients. The incident in this article is from: the Internet.
Editor-in-charge|Yonko
Cover image source: Visual China
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