Viewpoint | Can the People's Court directly determine that a medical institution is liable for compensation based on a defective medical record?
Published:
2024-06-17
If there is a fault in the writing or custody of medical records of medical institutions, but it cannot meet all the constituent elements of tort liability, even if the objection of medical records raised by patients is established, the determination that medical institutions bear tort liability is generally not supported.
Introduction
Article 1218 of the the People's Republic of China Civil Code stipulates: "If a patient is damaged in the course of diagnosis and treatment, and the medical institution or its medical personnel are at fault, the medical institution shall be liable for compensation." For the damage suffered by patients, medical institutions or medical personnel are at fault to bear the liability for compensation. Therefore, the composition of medical tort liability must conform to the constituent elements of medical behavior, fault causality and damage consequences. Article 1225 stipulates that medical institutions and their medical personnel shall fill in and keep relevant medical records in accordance with the regulations. If there is a fault in the writing or custody of medical records of medical institutions, but it cannot meet all the constituent elements of tort liability, even if the objection of medical records raised by patients is established, the determination that medical institutions bear tort liability is generally not supported.
1. brief
On December 13, 2013, Zhang was tripped on his left toe, and his right leg was not sensitive to water temperature. He went to a medical institution for treatment. A medical institution diagnosed Zhang with cervical spondylosis. On January 7, 2014, a medical institution performed multi-segmental cervical decompression and internal fixation on Zhang. After the operation, Zhang felt that his leg symptoms did not improve. For further treatment, Zhang went to a medical institution again on March 10, 2014, and a medical institution performed posterior lumbar decompression, bone graft fusion and internal fixation for Zhang on March 13, 2014. Zhang believed that the old disease did not go back to the new disease after the operation. After the operation, Zhang had obstacles in defecation and urine one after another and felt that the knee joint of his right leg was not straight, the position of lumbar vertebra could not stand, fell and was heavy. It is believed that the spinal cord nerve damage caused by surgery, resulting in irreversible damage to multiple parts of the cervical spine, lumbar spine, and limbs. Zhang then entrusted a lawyer to the court, requesting a medical institution to bear the liability. In the course of the lawsuit, Zhang consulted the medical records provided by the medical institution and found that the medical institution had forged the signatures of his family members. Therefore, he applied to verify the authenticity of the signatures of his family members. The appraisal opinion held that the signatures of his family members on the medical records were not signed by his family members themselves. Whether there is a fault in Zhang's application for diagnosis and treatment in a medical institution, whether there is a causal relationship between the fault diagnosis and treatment behavior and the injury suffered by Zhang, and the cause force is identified, but he does not agree to use the medical record as a test material. The case cannot continue because Zhang does not agree to the identification. After Zhang resigned from the original agent to find the author to represent the case.
2. author's point of view
1. The author believes that if the patient is damaged in the diagnosis and treatment activities, and the medical institution and its medical staff are at fault, the medical institution shall bear the liability for compensation. However, if the patient claims that the medical institution shall bear the liability for compensation, he shall submit evidence of the medical institution, the damage and the causal relationship between the damage and the medical institution. If the patient is unable to submit evidence that the medical institution and its medical staff are at fault, and that there is a causal relationship between the diagnosis and treatment behavior and the damage, he shall submit an application for appraisal and request the court to entrust the appraisal institution to issue an appraisal opinion. If the appraisal opinion believes that the damage caused by the patient is causally related to the medical institution, the medical institution shall be liable for compensation.
2. In this case, it is not feasible for the patient to claim that the medical institution should bear tort liability through the defective medical record. Although the medical record is defective, the defective medical record cannot prove that the medical institution's fault behavior and the patient have suffered damage, and there is a causal relationship with the medical record. If the patient can only prove that the medical record is defective, the court will not support the request to hold the medical institution responsible. Therefore, in order to obtain compensation, patients must apply for identification of the causal relationship between the damage and the defective medical record, the magnitude of the cause force and the degree of disability. Therefore, when receiving Zhang's consultation, the author made a preliminary analysis of the case, informed him of the risk of litigation, and suggested that he use all medical records and image data as identification materials, apply for identification, and claim compensation in combination with the identification opinions. The program was approved by Zhang and signed a principal-agent contract.
3. The author fully prepared materials in the lawsuit, summarized the main points in time according to the progress of the case, sorted out all the evidence materials, combined with the appraisal application form, cross-examination of medical records, participated in the selection of appraisal institutions, wrote statements, participated in hearings organized by appraisal institutions, etc., changed the lawsuit request after the appraisal conclusion was made, and accurately determined the lawsuit request. Zhang was very satisfied with the appraisal opinions made by the appraisal institutions fairly and fairly. Although the medical institution raised an objection to the appraisal report, it did not provide evidence to prove that the objection was established. Zhang believes that as a plaintiff, combined with the facts of the case and the advancement of procedures, he is dominant and very satisfied with the author's work. The case safeguarded the legitimate rights and interests of patients and achieved ideal results.
4. The author thinks that the medical record is the record of the treatment measures taken by the medical institution when the patient sees a doctor, and it is also the medical file of the patient made by the medical institution according to the medical standard. Because the medical record is made and preserved unilaterally by the medical institution, the medical institution has the responsibility to prove that the medical record submitted is true and complete. Medical institutions should properly keep and not tamper with medical records. If there is indeed tampering, the court cannot directly confirm that the medical institution is directly responsible based on the defective medical records. The court can determine whether the defective medical record has a substantial impact on the appraisal by consulting experts, entrusting document inspection, medical record evaluation or making a preliminary judgment by the appraisal expert. The medical records of patients come from medical institutions, and the medical institutions fail to make reasonable explanations for the problems claimed by patients, such as signatures, handwritten words and lack of materials. Generally, medical institutions will be identified as tampering with medical records. If there is no substantial impact, the appraisal can still be continued, but the defective medical record cannot be used as the basis for appraisal; if there is a substantial impact, the appraisal cannot be carried out objectively, the appraisal should be terminated.
Attached to relevant laws and regulations
the People's Republic of China Civil Code
1. Article 165 [Principle of Fault Liability and Principle of Presumed Liability for Fault] If the perpetrator causes damage to the civil rights and interests of others due to fault, he shall bear tort liability.
If the perpetrator is presumed to be at fault in accordance with the law and cannot prove that he is not at fault, he shall bear tort liability.
2. Article 1,179 [Scope of Compensation for Personal Injury] Where personal injury is caused by infringement on others, compensation shall be made for medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospital food subsidies, etc., which are reasonable expenses for medical treatment and rehabilitation expenses, as well as income reduced due to work delay. If disability is caused, compensation shall also be paid for assistive devices and disability compensation; if death is caused, compensation shall also be paid for funeral expenses and death compensation.
3. Article 1225 [Obligations of Medical Institutions to Medical Records and Rights of Patients to Medical Records] Medical institutions and their medical personnel shall fill in and properly keep medical records such as hospitalization records, medical orders, inspection reports, operation and anesthesia records, pathological data, nursing records, etc. in accordance with regulations.
If the patient requests to consult or copy the medical records specified in the preceding paragraph, the medical institution shall consult them in a timely manner.
4. Article 118 [Principle of Liability for Medical Damage] If a patient suffers damage in the course of diagnosis and treatment, and the medical institution or its medical personnel are at fault, the medical institution shall bear the liability for compensation.
5. Article 1222 [Presumption of Fault in Medical Institutions] If a patient is damaged in diagnosis and treatment activities and has one of the following circumstances, it is presumed that the medical institution is at fault:
(I) violation of laws, administrative regulations, rules and other relevant provisions of diagnosis and treatment standards;
(II) conceal or refuse to provide medical records related to the dispute;
(III) the loss, forgery, alteration or illegal destruction of medical records.
(Statement: This article is based on the author's experience summary of the point of view, only for the exchange of learning)
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