<h1 class= "pgc-h-arrow-right" > there are two main means to fool patients</h1>
What is An Online Medical Trust? That is, a specific entity that uses the Internet as a basis to lure patients and their families to related medical institutions in a deceptive way and form an alliance of interests with related medical institutions. In order to transmit benefits to the network medical trust, affiliated medical institutions often obtain high medical expenses through excessive medical treatment and false medical treatment in the diagnostic process, and ultimately achieve a "win-win" between the network medical trust and the affiliated medical institutions.
At present, there are two main ways of operation of network medical trusts. One is that employees of medical consulting institutions pretend to be doctors and "hook up" patients through chat software such as QQ, WeChat, and Momo, which has covered first- and second-tier cities such as Beijing, Shanghai, Kunming, and Chengdu, and is constantly expanding to third-tier cities. The other is to conduct online bidding rankings to browsers such as Baidu. Hospital bidding ranking is a marketing means for some private hospitals to pay a certain fee to the search engine to buy keywords and obtain ranking exposure in the search engine. Bidding links cost money every time they are opened, and hospitals have to invest huge bidding fees for this. Such a high price, naturally "wool out of the sheep", the patient after being deceived not only suffered financial losses, but also delayed the disease.
The network medical trust adopts the "Internet + medical" method to carry out publicity and promotion activities for some hospitals, so that the network medical trust presents a "vitality" that cannot be matched by traditional medical trusts. At present, the network medical trust has formed a group operation, corporatization management, and the intensification of the network medical trust is not only a misleading and harmful to patients, but also a self-harm to the medical industry.
<h1 class="pgc-h-arrow-right" > medical trust shall bear civil liability for infringement</h1>
The basic characteristics of the online medical trust's behavior of introducing specific medical institutions to patients and their families for diagnosis, or using bidding and ranking to provide publicity services for specific medical institutions, its basic characteristics are that it violates the statutory obligations stipulated by laws and regulations such as the Company Law and the Advertising Law, violates the principle of good faith of civil law, infringes on the civil rights and interests of patients to obtain appropriate treatment to protect their life and health, and also damages the property rights of patients. Therefore, the online medical trust should bear the civil liability for infringement.
Although China's Tort Liability Law does not clearly stipulate the attribution of liability for torts of online medical trusts, from the perspective of the manifestations of online medical trusts, traces of the principle of attribution of responsibility can be traced in the Tort Liability Law. The principle of attribution should be applied from the point of departure in order to give the victim the legal remedies it deserved, thus considering who should be held most equitable in assuming responsibility. In real life, patients often lack the necessary understanding and judgment ability of the internal situation of medical institutions, and the current network medical trust has formed a group operation, corporatized operation and management, if the general fault liability principle is adopted, patients cannot bear the burden of proof due to their weak position and will not be able to get relief in the end. Therefore, by adopting the principle of presumption of fault, the online medical entrustment entity can bear the burden of proof, so that the law gives preferential protection to the weak party, which also coincides with the connotation of the Tort Liability Law.
<h1 class="pgc-h-arrow-right" > patients can claim two types of compensation</h1>
According to article 15 of China's Tort Liability Law, there are 8 ways to bear tort liability: stop the infringement, remove the obstruction, eliminate the impact, return the property, restore the original state, compensate for the loss, apologize, eliminate the impact and restore the reputation. In online medical trust infringement cases, the most important way of liability should be to compensate for losses. The network medical trust causes personal and property damage to the patient, and causes damage to the patient's spirit, so the patient can claim consolation damages while claiming compensation for the loss.
Different from compensatory damages and comforting damages, punitive damages require clear provisions of the law, but China's Tort Liability Law only stipulates a punitive damage compensation system in the field of product liability, so punitive damages are not applicable to online medical trusts. It can be seen from this that through the Tort Liability Law, the patient can request the perpetrator to compensate for his actual losses and make compensation for moral damages.
<h1 class= "pgc-h-arrow-right" > hold hospitals accountable for three kinds of responsibility</h1>
Since the online "ranking bidding" activities of medical institutions have produced substantial advertising effects, the behavior of online information platforms as advertising publishers can be regulated by the Advertising Law amended in 2015.
In terms of civil liability, where false advertisements for goods or services related to the life and health of consumers cause harm to consumers, the advertiser shall bear joint and several liability with the advertiser. The publicity and promotion carried out by medical institutions is a medical service related to the life and health of consumers, so regardless of whether the network service platform knows that there is false advertising, it needs to bear joint and several civil liability with the medical institution. In terms of administrative responsibility, if an advertisement publisher knows or should know that the advertisement is false, the administrative department for industry and commerce shall confiscate the advertising fees and impose a fine, and the relevant department may suspend the advertising business, revoke the business license, or revoke the advertisement publication registration certificate. In terms of criminal liability, if the publisher of the advertisement knows or should know that the advertisement is false and still publishes it, it constitutes a crime, and criminal responsibility is to be pursued in accordance with law. Through the three-pronged approach of civil, administrative and criminal liability, the responsibility of online medical trust behavior is investigated and the legitimate rights and interests of patients are protected.
<h1 class="pgc-h-arrow-right" > multidimensional regulatory containment network medical trust</h1>
Although as early as 1998, the former Ministry of Health and the Ministry of Public Security jointly issued the "Notice on Clearing up and Rectifying Illegal Medical Institutions and Severely Cracking Down on illegal Activities of "Medical Trust"", which clearly and definitively violated the law, but the phenomenon of traditional medical trust has not been curbed, and the network medical trust has come to the face with unstoppable momentum. For a large number of online infringements, regulators often sigh.
The author believes that the establishment of a multi-dimensional regulatory mechanism is an effective way to curb online medical trust.
First of all, although the phenomenon of online medical trust can be regulated to a certain extent by other existing laws, it cannot produce targeted effects, and due to legal loopholes, this phenomenon cannot be fundamentally eliminated. Therefore, the formulation of special laws to regulate is a necessary move, and it is also the basic condition for eradicating network medical trust.
Secondly, the scope of online medical trust is widespread, and it is difficult to curb it only by using the method of patient prosecution, so administrative supervision cannot be absent. This is not only an effective way to prevent precautions in advance, but also to prevent a regulatory vacuum.
Third, effective technical supervision is an important starting point for controlling chaos. In the future reform of the health care system, technical supervision will not only be efficient but also cannot be replaced. Although China has not yet established a technical supervision system, with the development of China's economy, social progress, and the improvement of the system, the establishment of a sound technical supervision system will become inevitable.
Author Affilications:
Deng Yong, Beijing University of Traditional Chinese Medicine
Li Shu, China University of Political Science and Law