After the pet dog died, she took the pet hospital to court, but she did one thing wrong...

One day in August 2020, a special funeral was held on a rainy afternoon, and Tian Jing burst into tears holding a small urn containing the ashes of her pet dog Bei Bei, who had been keeping for 5 years.

Speaking of Bei Bei's death, Tian Jing cried silently: "If it were not for the timely treatment of the pet hospital, perhaps Bei Bei was now lying at the door waiting for me, instead of lying in the urn." ”

Just a week before Babe's accident, Tian Jing found that Babe had difficulty breathing and eating, so she took it to the pet hospital for examination and treatment.

After some examination, the doctor diagnosed: allergies, abnormal kidney function, suspected poisoning. After simple treatment such as infusion, the doctor asked Tian Jing to take Babe home for observation.

However, not long after arriving home, Babe had obvious breathing difficulties and poor mental condition, so the next day Tian Jing rushed Babe to the hospital.

Seeing this situation, the doctor took an X-ray of Bebe and found that a foreign body was stuck in Babe's throat, but many times with a clip clip failed, in order to avoid suffocation, the doctor recommended open throat to remove foreign body surgery.

The operation went quite smoothly, but what Tian Jingwan did not expect was that an hour and a half later, Bei Bei died in the hospital.

How to collect evidence and present evidence

After dealing with The aftermath of Bei Bei, Tian Jing ran to the pet hospital again to ask for an explanation, but the person in charge refused to admit that the hospital had any fault, and refused any form of compensation, which made Tian Jing both angry and confused, she asked her friends to take Bei Bei to the pet cremation center for cremation, and then a paper complaint took the pet hospital to court.

In court, Tian Jing submitted evidence such as pet hospital consumption records, surgical process photos, WeChat circle of friends screenshots, etc., and believed that there were diagnostic errors in the process of the first treatment, BeiBei had a large breathing phenomenon in both medical treatments, and only took X-rays in the second diagnosis and treatment, and there were misdiagnoses and violations of relevant procedures or improper medication during the treatment operation, which directly led to Beibei's death.

The pet hospital submitted the qualification certificate of practicing veterinarian, animal disease prevention and control certificate, animal diagnosis and treatment license, medication list, X-ray, prescription sheet, audio cd and other information, arguing that after the first treatment, Tian Jing took Bei Bei home to eat, it is likely that he swallowed a foreign body at this time, and before the open throat surgery, he informed Tian Jing of the dangers of performing the operation, and there was no fault.

On January 5, 2021, the court rendered a judgment on the case, holding that "the plaintiff did not provide evidence in this case to prove that the defendant was at fault in the diagnosis and treatment of the pet dog, so the plaintiff should bear the corresponding legal consequences of the unfavorable evidence" and rejected all of its litigation claims.

"While enjoying the happiness brought by pets, owners are encountering more and more troubles, more and more people enter pet hospitals and pet clinics, and the ensuing pet medical disputes are increasing day by day, and most owners, like Tian Jing, do not know how to collect evidence and present evidence."

Pan Ting is a lawyer at Tahota (Shenzhen) Law Firm, who has in-depth research on pet "medical troubles" cases, and has made unique achievements in the legal risks of the pet industry, disputes over medical service contracts, property damage compensation disputes and compensation cost calculations, and has given many lectures on pet "medical troubles".

"The pet 'medical trouble' I am talking about refers to the claim dispute between the pet owner and the hospital/clinic due to injury or death during or after the treatment of the pet in the animal hospital or animal clinic."

In response to this case, lawyer Pan Ting believes that there is a big difference between the burden of proof for human medical disputes and pet medical disputes.

With regard to disputes over the liability of persons for medical damage, Chapter 6 of the 'Tort Liability' Part of the Civil Code clearly stipulates the obligations of hospitals and their medical personnel in diagnosis and treatment activities, and Article 1222 clearly lists the circumstances in which the principle of presumption of fault applies, that is, if a patient is harmed in the diagnosis and treatment activities, the medical institution is presumed to be at fault, unless the medical institution has evidence to prove that it is not at fault in the diagnosis and treatment activities.

Therefore, in general, hospitals need to bear a large burden of proof. However, the pet medical dispute cannot be applied to the above-mentioned legal provisions, rather than strictly implementing the principle of 'who claims and who proves', and the biggest problem of the plaintiff in this case is that the pet carcass involved in the case was disposed of and the autopsy could not be carried out, so it was impossible to provide sufficient evidence to prove that the pet hospital was at fault.

Therefore, it is recommended that owners must not rush to bury and cremate pets after they die, so as to facilitate autopsy and evidence.

However, the "Fangyuan" reporter found that there is currently no forensic and identification institution specifically for animals to conduct autopsy, for which Lawyer Pan Ting gave three solutions, first, the owner and the pet hospital jointly agreed that a third-party hospital would conduct an autopsy; second, the court was asked to designate relevant pet medical institutions to conduct autopsy; third, request the local animal husbandry and veterinary bureau to conduct an appraisal.

In addition, Pan Ting also suggested that owners, first of all, starting from the acquisition of pets, should retain various bills, materials, photos and other original materials related to them, and secondly, take pets to see a doctor must go to a qualified regular hospital, and in the process of diagnosis and treatment, as far as possible to retain records such as examination, treatment, surgery and so on.

In the event of a dispute, it is necessary to seal the pet's medical records in time, keep the relevant medical documents, medical expense certificates, etc., these important evidences are the key to effective claims.

Should not be compensated for moral damages?

In pet medical dispute cases, most owners will claim moral compensation, because now the pet and the person have established a very close relationship, and the pet has become the spiritual sustenance of many people to some extent.

Pan Ting introduced that with the progress and improvement of China's judiciary, some courts have taken into account the mental damage caused by pet casualties to owners. Therefore, in several pet medical cases in the past two years, the court has upheld the owner's claim for moral damage, and article 1183 of the Civil Code also stipulates that "if serious mental damage is caused by intentional or gross negligence to infringe on a specific object of personal significance of a natural person, the infringed person has the right to claim compensation for moral damage".

In October 2020, a pet medical dispute case was heard in a court in Guangxi, and the plaintiff Feng Yao's purebred French bulldog Toot Toot was sent to a pet hospital for diagnosis and treatment due to illness, and the result was that due to the unfavorable care of the pet hospital, Toot Washu was lost, and had not been recovered as of the opening day, which caused feng Yao mental harm.

Feng Yao said: "The happiest moment of my day is the moment when I push open the door after I get home from work, because there is always a little guy with his tail between his legs and throws himself upside down, and then jumps into my arms to sell cuteness, spoil, and hug me, and whenever I hold this happiness with a little weight, the tiredness of the day has long disappeared." ”

However, since Toot Toot went missing, Feng Yao did not think about food, the whole person lost several laps, sometimes saw the food and supplies of Toot at home, always unconsciously shed tears, Feng Yao once felt that he was going to be depressed.

In the judgment of the case, the court ordered the pet hospital to compensate Feng Yao for mental losses of 5,000 yuan, and the judgment wrote: The pit bull involved in the case, as a pet that the plaintiff has kept for many years, is obviously different from ordinary property.

According to general common sense, the pet owner will invest more energy in the process of raising pets, form a more intimate relationship with the pet, and pin special feelings on it, so the loss of the pet owner caused by the death of the pet should not be simply equivalent to the money spent to re-purchase the same kind of pet, but also take into account the mental loss factors caused by the pet owner.

How the value of a pet is determined

Nini is a Maltese dog with a slender body, wearing silver-white silk-like hair, and has a very docile personality.

Six years ago, Du Yan spent 20,000 yuan to buy Nini from a friend, the first time she saw Nini, Du Yan was very fond of it, gave it imported dog food, bathed at least twice a week, in order to keep Nini's hair color pure white and supple, Du Yan combed its body hair every day.

On weekdays, Du Yan is inseparable from Nini.

One day in November 2019, Nini unusually did not run to the door to pick up Du Yan, who had just left work, lying in her nest and not moving, and what she ate would soon spit out.

Du Yan took Nini to the pet hospital for the first time, and the doctor preliminarily determined that Nini's uterus may have pus in her uterus after examination. After that, the doctor recommended a hysterectomy and stayed in the hospital for observation for three days.

However, the morning after the operation, the medical staff found that Nini was dying, and after all-out rescue, Nini died in Du Yan's arms that afternoon.

In order to calm the people, the pet hospital negotiated compensation with Du Yan, and compensated Du Yan for Nini's medical expenses and funeral expenses. However, Du Yan believes that the above costs are far from enough to compensate her losses, especially for nini's purchase fee and feeding fee, there is a huge dispute.

Based on this, Du Yan took the pet hospital to court.

On September 10, 2020, the court rendered a judgment on the case, stating that with regard to the market price of the pet dog claimed by the plaintiff, the parties had a dispute over the breed of pet dog, and the plaintiff did not provide direct evidence sufficient to prove that the court determined it at its discretion in light of the age of the pet dog. Regarding the plaintiff's claim for pet dog breeding fees, it is difficult for the Court to support them due to lack of basis.

Pan Ting told reporters that in general, in this type of case, the owner claims rights based on the price of the pet he originally purchased, but the previous Tort Liability Law and the now-implemented Civil Code have clearly stipulated that "if the property of others is infringed, the property loss is calculated according to the market price or other reasonable methods at the time of the loss."

The jurisprudence behind this provision is actually more in line with people's simple cognition and the principle of fairness and reasonableness of the law. For example, for the owner, after the purchase of the pet and before the pet casualty, the owner has already enjoyed the happiness and companionship brought by the pet, similar to the depreciation rate of other assets. Therefore, in the case of a decline in the market price of the pet, it is not reasonable for the infringer to use the price at the time of purchase as the basis for damage compensation.

Of course, in the case of rising prices in the pet market, if the original pet purchase price is used as the basis, the owner cannot buy the same pet after being compensated, which is unfair to the owner. Although the price of the original purchase of the pet can not be used as the basis for loss compensation, the owner should still pay special attention to the purchase voucher such as the purchase invoice and the pet pedigree certificate when purchasing the precious pet, so that the court can reasonably determine the market value of the pet when the loss occurs.

In addition, the "Fangyuan" reporter learned that in the general medical pet dispute case, the value of the pet involved in the case is divided into four parts: purchase value, feeding expenditure, skill value and pet supplies expenditure.

Pan believes that the cost of raising and consuming pet supplies is bound to be spent, regardless of whether there is an accident or not, so generally such claims will not be supported by the court.

According to the relevant pet industry insiders, if the pet involved in the case has disappeared, the purchase value of the pet can also be evaluated based on the video, photos, and the figure, ears and other parts of the pet involved in the case.

Skill value can be determined by watching the video to determine whether the pet has mastered the skills of throwing objects, peek-a-boo, looking for things, etc., and the mastery of the skill requires the pet keeper to invest time and energy, which is the embodiment of the pet's use value and should be identified.

How to reduce the occurrence of disputes

"At present, China's laws have not recognized the independent legal status of pets, which are divided into property, and disputes caused by courts around pets are often handled in accordance with property damage disputes or contract disputes, and there is still a great controversy over the definition of the burden of proof and compensation liability, so pet owners are often in a passive position." Liao Weimian, a senior partner at Tahota (Shenzhen) Law Firm, gave relevant advice.

First of all, when treating your pet, the owner must choose a qualified pet hospital and a doctor with a veterinary qualification certificate, and if necessary, you can change several hospitals for diagnosis.

Secondly, pet owners should carefully read the relevant treatment terms and charging standards in the hospital, retain the relevant vouchers and examination results, and fully explain the treatment plan to the pet owner when taking treatment measures, and sign written documents such as informed consent if necessary.

Pet owners should also describe the condition of the pet to the doctor in as much detail as possible, and fully communicate with the doctor on the medication and treatment of the pet.

Finally, recourse to the law is not the only way to solve the problem, when a medical dispute occurs, you can first mediate with the hospital, generally the street where the mediation committee is set up, as the veterinary authority of the Animal Husbandry Bureau will also mediate, if necessary, then resort to the law, but do not take the way to pull banners, lay wreaths, block the door and other real medical ways to protect their rights, such illegal acts will make themselves more passive, and even break the law.

In addition, Lin Guide, a professor at the College of Veterinary Medicine of China Agricultural University, suggested that China should formulate relevant laws and policies, determine the resolution and handling process of animal medical disputes, standardize and deal with the fundamental countermeasures of pet medical disputes in accordance with the law, and explore the establishment of a "blacklist" system for animal diagnosis and treatment institutions and veterinarian credit.

In addition, it is necessary to set up a special animal diagnosis and treatment accident appraisal institution or a pet diagnosis and treatment dispute handling institution to facilitate the legalization of pet medical dispute handling and increase the trust of all parties in the handling of pet diagnosis and treatment disputes.

Xin Shengpeng, deputy director of the China Animal Disease Prevention and Control Center, vice president and secretary general of the Chinese Veterinary Association, said: "The pet medical industry must also have unified disease diagnosis and treatment standards. On the one hand, it is necessary to operate in accordance with the rules and regulations of the industry, obtain the necessary qualification certificates, and also hire veterinarians with professional qualification certificates to carry out diagnosis and treatment activities; on the other hand, we must do a good job in the internal standard management of diagnosis and treatment procedures, nursing, etc., and before carrying out surgery or other major medical diagnosis and treatment activities, we must let pet owners personally consult and sign documents such as notices, risk reminders, and properly keep such documents, cases and diagnosis and treatment records of each link; in addition, improve the quality and business level of doctors. Transparent and reasonable prices. At the same time, our association also looks forward to lawyers who understand both the law and veterinary knowledge to serve in the pet medical industry. (The people involved in the case are pseudonyms)

(Source: FangYuan WeChat public account Author: Wei Min)