[editor's note]4 on the morning of 10, Shandong Province, the Dongying intermediate people's court held on the theme of "the medical dispute case trial practice" fifty-first judge forum. A court in Shandong province court judge Liu Xuesheng, people steering group vice president Xu Fei, center, City Health Bureau deputy director Han Zhidong as a special guest judge, a court judge, then people all counties in the court trial, on behalf of the Municipal Lawyers Association, hospitals and Health Bureau and other units a total of more than 20 people attended the forum. Forum is chaired by a member of the judicial committee, the court civil court judges Li Aiqun.

   In recent years, the medical dispute cases showed increased by the number of cases, the contradiction and legal basis for the diversity of characteristics, a high degree of social concern, the court trial pressure. In order to realize the unification of legal awareness of the objective, then organized the forum.

   The forum, representatives of several practical problems in judicial practice has been tried the case reflects carried out in-depth discussion, speak one's mind freely, from different angles on the many difficult problems in medical malpractice cases, judge Liu Xuesheng province court made comments, the host makes a summary of views on, Xu Fei vice president then presents on how to hear the cases of medical disputes. The forum published content arrangement.

 Host Li Aiqun (member, Dongying intermediate people's court trial committee president)Today, we hold the Dongying intermediate people's Court of fifty-first judges forum, the forum's theme is "the medical dispute adjudication practice". This forum has two characteristics: one is on the content of our very specific, unifying several rough justice in practice already settled the case reflects the practical problems about knowledge, had not asked you to prepare a written materials, the purpose is to strive to be flexible in form warmly, speak one's mind freely; the two is to participate in the forum staff a wide range, in addition to the two level the court in the trial judge representative business, and IBA, hospitals and medical association representatives, help us from different angles, to explore new ideas. The forum, we have invited a deputy director of the provincial court people a court judge Liu Xuesheng and then guide the group vice president Xu Fei, the City Health Bureau Han Zhidong as a special guest to attend, they will put forward important guidance to the forum. To let us applause to welcome to all the guests and delegates.

In recent years, the medical dispute cases showed increased by the number of cases, the contradiction and legal basis for the diversity of characteristics, a high degree of social concern, the court trial pressure. Stand in the different angles, will have a different understanding of the same event, the treatment of different opinions and conclusions. Lawyers and judges, between between hospitals and patients, the Justice Department and the administrative department may exist between the understanding difference. The need for a unified standard and scale of construction, or not conducive to the settlement of disputes and the harmonious society. Therefore, we hope that through communication and exchange, on the problems encountered in practice, sat down to be analyzed, in order to achieve the purpose of understanding. Today's forum is the intermediate people's court people a court and lawyers association, especially with Qi Zhiying lawyers repeatedly brewing results, the main problem is put forward by the lawyer Qi with several cases, the common research, the provincial court judge Liu Xuesheng commented, host and strive to do a summary for each problem. To these questions, the forum can be resolved as much as possible, can not be solved, in the continuing research. I hope you speak one's mind freely.

The forum officially began. First please lawyer Qi Zhiying introduced the first case.

Qi Zhiying (member of women lawyers working committee of Dongying Lawyers Association)According to the moderator arrangements, below I introduce in a, where a and a hospital medical tort case.

Case description: pregnant women in January 31, 2004 at zero thirty in the morning the labor in a hospital, four twenty on January 31, 2004 birth to a boy, named Hemou, neonatal weight 4.8 kg, in a perineal laceration, where a bilateral fracture of the clavicle. He was on February 7, 2004 in a hospital treatment, the initial diagnosis of "neonatal hyperbilirubinemia of newborn, asphyxia (mild), fetal macrosomia, neonatal anemia", 18 days of hospitalization, discharged in February 25, 2004, spent 4395.26 yuan on medical expenses, in 2004 February 9 sunrise hospital, medical expenses spent 2566.66 yuan. After he went to the hospital for diagnosis and treatment of diseases all over the country, the No.1 Hospital of Peking University diagnosis he has motor mental retardation, epilepsy and other diseases. He spent for the treatment of diseases of medical costs 3759.6 yuan, transportation costs 2645 yuan, 476 yuan accommodation, meals 488 yuan.

The medical accident identification: with the direction of a district health bureau to apply for medical accident identification, a District Health Bureau entrust Dongying City medical association. May 25, 2004 Dongying City medical will make Dongying medicine Kam (2004) No. 13 medical malpractice identification conclusion, this case belongs to the three level of E and other medical accident, take full responsibility for the consequences of damage in medical institutions. A hospital refuses to accept the conclusion, to apply for re identification, September 14, 2004 Shandong Province medicine will make medical Jian Lu (2004) No. 110 medical malpractice identification book, conclusion the medical institutions for medical behavior: 1, admission is estimated fetal greatly, also recorded, a mission, but the lack of women and their family members fully informed opinion agreed; 2, observation of birth process not carefully; 3, records of individual local is not accurate enough (such as admission of fetal arrhythmia were recorded before and after inconsistent). With no causal relationship between behavior and the damage in patients with medical consequences, this case does not belong to medical accidents.

Action: 2004 September, in a certain, he believes there is fault medical behavior a hospital, killing two people and physical damage, according to "general principles of civil law" in medical tort sued to the court, think for a birth in a hospital, the hospital medical behavior existence fault, body damage caused in one, he's a hospital, request compensation for a particular, Hemou medical costs, delay costs, care, disability compensation, mental damage solatium, the loss of 98440.4 yuan, and assume the future cost of treatment. The hospital said in reply, the medical behavior does not have fault, should not assume liability to pay compensation, and put forward the counterclaim, requirements for a, where a pay for hospital costs 6961.92 yuan. In the course of legal proceedings, the plaintiff to apply for, a judicial identification of science and technology center in January 26, 2005 to identify the Hemou body injury: nine class disable Hemou bilateral clavicular fracture, he has mental, brachial plexus injury, epilepsy, failing to identify machine, unable to determine the level of disability. At the same time, the application of measurement for a pelvic basic data, the court commissioned the Shandong Qilu Hospital were measured, the measurement results and hospital medical records data is large.

The trial, in a certain, he provides Hemou to Dongying People's Hospital, Ji'nan and Beijing hospital medical records, medical bills, technical appraisal of Hekou District Court, to proof the physician-patient relationship and patient damages. A hospital to Shandong Medical Association medical accident appraisal report and in some, he in a hospital medical record data, show that the hospital had no fault, the identification of patient reply in written form is not legitimate, not identified staff signature; in fact, on the basis of medical record information is not true, it finds the facts and conclusions error; the identification of the content is too simple, applicable to non legal terminology, vague. The evidence cannot prove that a hospital. Estimation of fetal weight vacant column a hospital medical record data, resulting in diagnosis and delivery in hospital errors. At the same time to provide measurement data, Hemou Qilu Hospital, proved a no hospital for prenatal examination and measurement in a practical, medical behavior existence fault. A hospital for the counterclaim provides a hospital department issued in a, where a hospital costs and details, that in some medical costs 2566.66 yuan, Hemou medical costs 4395.26 yuan. In a, where a cross examination, the damage is caused by the fault of the hospital, the cost is not by the bear; in addition to pay a deposit of 2000 yuan, he has to pay 2100 yuan, the fees shall be returned to the.

Trial results: Dongying City estuary District People's court according to the situation that the parties burden of proof: a hospital medical records has an empty bar, book and detection of medical records, hospital records of Qilu Hospital of recorded data and a hospital medical record data is large, it is not a hospital for a physical objective, actual measurement in the prenatal in addition, a hospital not to fulfill the obligation of informing, observation of birth process not carefully. The above description of the error in a treatment process is a hospital, second analysis of Shandong Province Medical Association to identify the book also confirmed this point. In June 7, 2005 made the first instance judgment: a hospital for observation of birth process is not careful enough, a delivery process caused Hemou bilateral clavicular fracture, identified as nine disabled. A hospital the treatment process, there is no fault of insufficient evidence. For what a bilateral fracture of the clavicle, sports intelligence and with retardation, epilepsy and other diseases, hospitals have no evidence to show that there is no causal relationship between, and his diagnosis and treatment behavior therefore, existing tort law where a and a hospital, a hospital to Hemou for damage caused by medical expenses, traffic expenses disability compensation, compensation, and he asked the defendant to compensate the mental damage solatium litigation request support. To request the spirit damage compensate request, not good enough, not support. From a to a hospital, medical services contract with hospitals, both parties shall strictly perform in a hospital, in the delivery of the deposit 2000 yuan, has fulfilled the obligation, not perform part shall timely payment, the court shall support; he transferred to the pediatric treatment, was taken to the medical behavior of the existing fault remedial measures, is its obligations, a lack of support in a hospital for the payment of medical expenses of the request. Decree:

A hospital where a payment of medical expenses and other costs 57035.8 yuan, to pay a hospital costs 566.66 yuan, the judicial identification fee of $2500 from a hospital burden.

After the first trial, a hospital appeal, appeal to the Dongying intermediate people's Court of second instance upheld.

The legal issues involved in this case:

1, Dongying City medical will be different and the appraisal conclusion Shandong Medical Association, which one is correct?

2, how to identify the authenticity of records? If the case is not true, the medical institution shall bear the responsibility for what? How to guarantee the authenticity of records?

3, the case by the Shandong Provincial Medical Association medical accident identification is not, whether it should be the clinical forensic medicine? Not through the clinical medical evaluation, how to determine whether the medical institutions bear the responsibility? If the identification, whether the procedure is too complicated?

4, according to the appraisal conclusion of Medical Association, the case does not constitute a medical accident, but the amount of compensation is higher than the amount of compensation for medical malpractice, what legal basis?

In 5 patients, the prosecution case is the medical tort, the doctors brought default counterclaim, whether the merger trial?

Li Aiqun: This is the estuary District Court of first instance, the court people a court of second instance cases, the second is upheld. Several problem of homogeneous lawyers summed up from the case inside, by the discussion, can talk.

Zhai Yufen (Dongying court judge)To solve the first problem, talk about their own views. According to our previous applicable "medical accident treatment measures" provisions, the appraisal committee of medical technology is divided into provinces, districts and counties level three, composed of doctors, health administrative cadres, provincial appraisal appraisal committee for final identification, identification of the appraisal committee of the area, in case of a dispute, no accident treatment basis is. The basis of it, I think it is the procedure of administrative handling medical accidents final technical basis, which is not based on the courts. We now apply the "Regulations on handling medical accidents" not on the identification effect make specific provisions, only that "to provide medical basis for dealing with medical dispute". In the trial process, we do not deny that the findings of fact and responsibility identification of cases with high potency, but cannot be used as the basis for a final decision of course, shall review and other evidence, if there is evidence that the provincial appraisal committee identification procedure is not in conformity with the provisions, based on the material error etc. provincial, appraisal conclusion can not adopt. In short, the court to determine the tort liability of medical units, in addition to considering the facts, but also consider other legal elements and judicial policy. For the conclusion, not blind obedience, the court can only with other evidence as evidence examination.

Li AiqunIn this case, a trial is the estuary District Court, district court judge Li Renling below by mouth to talk about opinion.

Li Renling (estuary District Court)This case is the first instance I, Dongying Medical Association and the Provincial Medical Association issued identification results instead, at the time of the adoption of high level should advice or low identification results level very hesitant, then do the judicial identification, identified as nine disabled, that hospital has fault, should bear responsibility. For the second problem, we went to the hospital to understand, think his record is not perfect, the judge through the testimony, that history is not true. For the third problem, we entrust the judicial identification, we consider whether a causal relationship exists between the patient's diagnosis and treatment behavior results of damage and hospital, is a very professional, not a judge to judge, should by professional institutions to identify. For the fourth problem, identification of medical accidents, the amount of compensation is low. Is not a medical accident, but a causal relationship, the amount of compensation is high, this situation is the objective existence. On the fifth question, I think to adjudicate.

Li AiqunAs between the damage and the medical behavior whether a causal relationship exists between, this is a very major problem, not a judge to determine the content, shall entrust a professional institution identification.

Lawyer Qi in front of you just put forward the question, whether also talk about the view? The problem is you up, you should think about these problems is to.

Qi ZhiyingAs the patient's agent, I to this decision is very satisfactory. But there is some problem, I think there should be necessary to discuss. A City Medical Association and the Medical Association of expert conclusion in accordance with the "Regulations" provisions, the handling of medical accidents, regulations promulgated, the Supreme People's court also has the corresponding judicial interpretations, if a medical accident, or in accordance with the "Regulations" the relevant provisions of the handling of medical accidents processing. The Medical Association and the Medical Association identification, I think from the regulations on understanding is different, the first is not satisfied with the appraisal conclusion Medical Association of words, can go to the province to engage in a identification, that is identification of the two identification is at an end, unless it is very difficult to the Chinese Medical Association was identified. According to this situation, although there is no clear medical identification in the province in the city than high, but the regulations based on the contents of the provincial identification effect should be higher. In the process of trial, should regard it as an evidence to review, I very much agree with Zhai Yufen's opinion. The truth about medical records, medical records not only from the surface, we also maternal physical re measurement, discovery and admitted that the gap is very big, so we think the case writing content is not true, at least one part is not true, as part of his how to determine, Is it right? The whole case is not true, this did not recognize. I think the burden of proof, case by medical institutions to writing, custody, the authenticity of the case shall be made by medical institutions to prove, I also find some information, in the city of Beijing High Court has a special trial opinions of medical damage compensation, also mentioned this matter, if the authenticity, integrity the risk of side of the case put forward reasonable doubt, medical institutions should authenticity, integrity for the case provides evidence to prove, the case hospital and no reality provides evidence to prove case, because it does exist, and can not prove its authenticity, if the case is not true can not engage in medical identification of the accident, "there is such a provision of Medical Malpractice handling Regulations". Cases are not true, many patients will accreditation is true, in fact he is not real, but he in order to make the medical accident identification, he can only be so recognized. Now the case truth and not a corresponding identification mechanism can authenticity identification of cases, if the case is not true, according to the medical liability, medical institutions the main evidence is lost. For the third problem, whether in clinical forensic medicine, I think, according to the law, to clinical forensic medicine, but the procedure is too cumbersome, after two times of the medical accident identification, time has dragged on very long, some of them have dragged on for more than a year of time, if the clinical forensic medicine identification of potentially controversial, were also identified, optical identification takes too long, too complex, but I couldn't think of a better way to. On the fourth question, the Supreme People's Court on the medical dispute case is a judicial interpretation, the judicial interpretation that constitute a medical reference "medical treatment regulations", do not constitute a medical malpractice, refer to the "general rules of the civil law" and the relevant judicial interpretation. Often the fault of the medical institution is very obvious, very serious consequences, constitute the only medical accident. If you do not constitute medical malpractice, often general medical tort is established, the degree of fault and the consequences of the violation to light some, but the amount of compensation is high, although there is indeed a corresponding legal basis, but I think it's not very fair. I think the Beijing Higher People's court, we can refer to. They mentioned the malpractice, if in accordance with the regulations, the patients suffered losses cannot get basic compensation, can be used "general principles of civil law" and the relevant judicial interpretation, the appropriate increase the amount of compensation. Li just president also mentioned the matter, after the medical accident identification is medical accident, but the hospital the responsibility is very small, bear secondary liability or responsibility is minor, sometimes, a lawsuit after obtaining compensation lawsuit cost is not high. I think from the principle of fairness, can refer to "general principles of civil law" and the related judicial interpretation. The fifth thing is that I think can be handled together.

Li AiqunThis example presents more problems, we can take some time, we fully discuss, the other comrades who talk.

Jiang Jie (deputy director Clinic Shengli hospital)In this cases, patient identification argue that medical will not identified signed, not legal. In Dongying City, the book is not identified identified a signature by the person. This is a unified format, I do not know the estuary District Court last Is it right? Support, but in a simple no identification staff signature identification of illegal that I think is wrong. The real questions about cases, cases of maternal prenatal estimation data, patient data error has several possible: one is the measurement personnel do not seriously, second is the personal level, there is a post correction problem. These problems can not lump together. For the medical institutions can explain my own thinking, if the medical accident only by the "Regulations" provisions, to the hospital is dangerous for the treatment, treatment is always in development, some treatment methods that are suitable for you today, maybe tomorrow is not appropriate, not medical damage as breach of contract the person damage, according to the general principles of the civil law "completely" the restrictions and fetters to compensate, I feel for medical institutions is not so fair.

Han Zhidong (deputy director of Dongying Municipal Health Bureau)After just listened to the discussion of this case, it is the education, now your questions are universal problems. One is the identification of the book you mentioned no signature problem. Now in our city in identification, identification of personnel is random, do not let the staff know the appraiser's name, because some people now know identification staff name, some malicious call identification to the family. Experts do not identify the signature of the book, but also for the protection of expert's personal safety, in our city have signed, signed the file identification, books to be served to his patients and hospital, in order to avoid malicious damage, identification of books will not identified a signature by the person, I estimate the law also consider this point. Identification of medical accident should always have a superior subordinate relationship, a grade one level, although there is no clear legal provisions, but it should be on the level, or else there would be no need to push to the city, county, city to province, the province to the national, not by conclusion the overthrow of the appraisal conclusion behind the front level. It is the most typical Sichuan Medical Identification of some time ago, the country as a typical case to discuss. Medical identification and judicial identification which based problems, there are some disputes, judicial expertise from some kind of degree, from the Justice Department to identify experts point, pumping and medical aspects of appraisal, also is the medical experts, is produced which provide problem. Then there is the issue of compensation, in order to "general rules of the civil law" is still subject to the regulations on handling medical accidents, the old way to have a specific amount, 5000 yuan for the maximum amount, death an accident compensation 5000 yuan, and now it's impossible. Mediation to some extent by the medical accident treatment measures and regulations basis, according to what is now the key problem, I just and our court leaders talk about this thing, now an opening is hundreds of thousands of, millions of. The normal traffic accident, you It is without rhyme or reason. walked in the street killed, how much compensation? The country is not clearly defined? But if it is a heavy one, in which hit you all right, I'll give you compensate how many money, killed the how much money, but if you hit the injured to hospital after treatment, if the connection is not very good, the amount of compensation than you hit the people more and more, mend his ways to save him back, charging more than the liability for compensation. The original "health care approach" to the amount of compensation is very small is what reason? The health department is the Department of the state public property, public service, this is the country to give a qualitative analysis of the health sector, as public welfare, in a way, he is the public welfare institutions run by the state, to some extent, the interests of the state in the inside, now it is on the basis of what kind of compensation criterion to solve? The specific case not to talk, since that is not a medical accident, excludes causality normal. Judicial identification is a disability identification, nine class disable, finally the medical accident did not appear to be the case, in which one is correct? Such a case has been made for many years, which shall prevail, why to find so many reasons not to subject the provincial identification? Is the record is not complete, the key is what is not complete, is be of no great importance spaces is not complete, and the causal relationship with it doesn't matter? There is a special case, emergency patients in the rescue process, have neglect in the operation process, this record was later in the rescue after, if once appear what, immediately sealed case, may be incomplete records, may also not recorded, he demanded operation, or after the rescue is over, go back to review the writing case, I have objection at the time, immediately sealed case, this case is what also have no, in the future to overturn the whole process of medical care is not realistic.

Li AiqunPlease judge Liu Xuesheng for comments as we speak.

Liu XueshengIn recent years, research on medical accident disputes more, "Regulations on handling medical accidents" issued, including the Supreme Court rules of evidence, the burden of proof in medical disputes, including compensation, and before the treatment is not the same, ideas changed, so exposed more problems, in this case. Just discussed, it puts forward several problems, it is said that the medical accident dispute most will encounter difficulties, and this is our trial practice. This opinion I talk about several aspects, the first and the third is about the evaluation, second about the medical records, fourth is the amount of compensation, the fifth is the problem of program.

The first, third and I together, this is actually an identification problem of medical disputes, we have two kinds of identification, one is the identification of medical accidents, the second is the medical fault identification. Why are there two different identification? Our procedure is a dual track, as long as the hospital patients caused by that constitute a medical malpractice, is the medical accident identification, if do not constitute medical accident, fault cannot be determined, is the medical fault identification. Two kinds of identification in this case, whether the medical accident identification and the medical fault identification, from the legal perspective, they are a kind of evidence, identification is only a method to find out the facts of the case or a way, in the litigation process no matter how identification, in accordance with the "Regulations on handling medical accidents" that is, the technical appraisal of medical accidents, compared with a unified view of this identification in the judicial process, this kind of expertise, is a kind of evidence, whether through the city level, provincial level and the Chinese Medical Association issued, it is a kind of evidence, it has an adoption and non adoption problem. Now that all the evidence, in one case, there is one who proof force, whose proof small problem. That force and appraisal organization level it doesn't matter direct and inevitable. So the conclusion is no hierarchy, only that the size of the problem. Who's that force, that stronger, accept anyone. The adoption of who is entirely from the evidence itself, of course, from the "Regulations" the handling of medical accidents, identification of books from the Medical Association and the administrative department of public health perspective, is important for medical treatment. If the judicial authentication does not constitute a medical treatment program, health administrative departments will not start the medical accident, this is the understanding about the identification of the. Another is the appraisal conclusion review questions in practice, the people are concerned about the signature, the provisions of the appraisal conclusion audit according to the Supreme Court rules of evidence, it can be divided into two aspects of form and essence, from the form of speaking, a complete appraisal conclusion should have identification purposes, objects, process, some key problems are described, especially the medical accident identification, the fault and causality, must have the identification unit and appraiser's signature, it is clear the Supreme Court rules of evidence. For the protection of personnel identification director Han said, indeed in this regard, before the Supreme Court rules of evidence, identification conclusion many did not identify a signature by the person, but the. But after the Supreme Court rules of evidence, no identification of the signature of the person not, protection of medical experts in fact there are a lot of ways, it is actually benefit comparison between patients and medical experts, interests, whose interest is more important. We think, the signature is clear judicial interpretation in litigation, medical accident identification book signing and other identification signature is the same, including our construction project audit, no signature, signature qualifications are not without. No signature, evidence from the form of speaking is lack of legitimacy. If the appraisal conclusion favorable to the medical institutions, patients could raise objections, said no identification of signature identification, identification is illegal, the court will not be able to use this evidence.

On second cases of authenticity, many cases have met, in the medical dispute, medical records is a very key evidence in the trial practice, we often encounter the forge medical record, modify the case that, for the authenticity of the medical records of medical institutions, we cannot be too harsh. As a patient, to say the case is false, then you have to provide evidence, a medical writing, have corresponding standards, if the patient that the medical record is forged or altered, illegal, should provide reasonable evidence, let a person see is reasonable doubt, then the burden of proof such as transferred to the medical institutions, medical institutions can make to explain, the reasonable doubt eliminated. If you take away, or altered, only to be of no great importance place changed, it does not matter, if the correction leads to the facts of the case difficult to identify, as then the impact of liability, the medical institution shall bear the corresponding liability of medical records, we come to understand the problem from the action, to understand from the evidence and the burden of proof.

The fourth problem is the differences in the amount of compensation. A medical accident is a serious medical tort, does not constitute a medical accident due to error constitutes tort, generally speaking, the extent of the damage it should be lower than the medical accident. However, after the "Regulations on handling medical accidents" now, compensation standard and "general principles of civil law" standards are different, from the legislative background, this difference is considered as the cause of public welfare hospital. But in the judicial practice of our point of view, this is not within the scope of our consideration. From our trial perspective, there is evidence of damage, I will consider to fill the damage to the victim, litigation may not put the society all things are dealt with, including under the law of equity, as public welfare I can maintain, but public medical accident, must through the litigation in court, we solve is how to fill the damage. From this perspective, since the "Regulations on handling medical accidents" has stipulated the malpractice in the processing, does not constitute infringement or in accordance with the treatment, so this result is normal. If the medical accident amount higher than in accordance with the amount of compensation for infringement disputes, what the patient will not. Now the problem of tort, in accordance with the amount to be high, in accordance with the medical accident should be low, a lot of cases is such a case. Malpractice in medical accident, so in fact caused by unfair to patients. As the medical institution that is medical accident, after identification and constitute a medical accident, the final amount is very low, is not fair. Just tell the lawyer, talked about the Beijing high court practice, around 2004 when the provincial committee dedicated to this problem is discussed with the Beijing high court, our point of view is the same as the. If in accordance with the medical accident, the compensation amount is far below the amount of compensation to the patients according to the infringement of the amount of words, then the court may be appropriate to increase the amount of compensation, it is mainly in order to make up for the loss of the victim. The litigation in medical dispute function is actually quite simple, but it has a balance of interests of the doctor-patient relationship function. Have happened in the determination of damage, that is how to fill the damage? So can increase the amount, the court judicial committee is a resolution.

The fifth problem is a problem of program, breach of contract or tort, or, it has different legal relations, normally is not consolidated, but in the medical dispute this breach of counterclaim, the purpose is to offset the damage of the request, can be handled together so we should in this case.

Li AiqunThank the comments. Originally the host is ready to each problem case relates to do a summary, but Liu judge after the speech I felt that the case was not necessary to summarize, Liu Faguan on the five issues have made incisive explanations, his opinion presenters agree. This case study here, please, Mr. Qi presents second cases and problems.

Qi ZhiyingBelow I introduce the cases of compensation for Choi and B hospital medical accident damage.

Case description: Choi and Liu of husband and wife, Choi after pregnancy, once in June 13, 2004 to the second hospital for prenatal ultrasound B, the same year in September 4th for delivery in the second hospital, prenatal again for the B type ultrasonography. two B ultrasound examination showed continuous fetal spinal bone, No. Sixteen forty-five on September 4th, LiuMou daughter born, medical researchers found that a 4 * 5cm size bulge of neonatal sacrococcygeal, please Department of Neurosurgery consultation, diagnosis of congenital spina bifida "". In September 8th, Choi discharged with the mother. In December 10, 2004, Liu Mouzhi visits Ji'nan orthopedic hospital for women, "the cauda equina was discharged in January 21, 2005,". Choi, Liu, Liu Mouzhinv believes that the negligent medical act hospital, brought to the Dongying District People's court, ask B for the hospital the losses more than 8 yuan. In the course of legal proceedings, the plaintiff for disability identification, the application of the medical accident identification. Dongying District People's court commissioned by the Dongying Medical Association medical accident identification.

   In March 24, 2006, Dongying City Medical Association of medical accident identification, the patient stated the reason is: the patient first presents the problem of the qualification B ultrasound inspection personnel (two times respectively by different researchers checked), required to produce evidence, and a working hospital where the staff is on a business trip, unable to produce the patient presented evidence; and every B ultrasound report shall be made by two professional staff signature, while B hospital to Choi made the examination report only a staff signature, belongs to the illegal procedure. Finally, the patients with Liu Mouzhi female medical records, to prove B type ultrasonic diagnosis of the hospital is wrong, is not found to have spinal defects. The hospital was mainly from the following aspects: 1, the respondent B ultrasound inspection according to the current level of science and technology is still unable to achieve the detection of the disease rate of 100%, missed diagnosis is can hardly be avoided, range Liu Mouzhi female spina bifida is too small, check not detected; 2, medical personnel check the project complete, no leakage, conform to the standard of diagnosis and treatment; 3, Liu Mouzhi female spina bifida is caused by abnormal development of the embryo, has no causal relationship with the hospital medical behavior.

   Medicine in comprehensive consideration to the views of all parties, produce conclusions: the case for the three class of medical accident, the negative secondary liability accident.

   Dongying District People's court organization the doctor-patient both sides of the mediation, both sides on the basis of the medical accident identification conclusion, considering the Liu Mouzhi female disease status and future treatment, finally both sides agree: the one-time payment of Liu Mouzhinv et al. 80000 yuan, after every six months for Liu Mouzhi to free women a urine test, until age eighteen years.

The legal issues involved in this case:

1, in the case of patients in medical tort the prosecution case, the medical institution violates is the health of the child or parent's right to know, the right of prenatal and postnatal care option? The case whether the plaintiff shall include the Liu Mouzhi girl? Liu Mouzhi female medical expenses and disability compensation should be supported?

2, prenatal examination failed to detect patients with defects, lack of technical ability is negligence, medical personnel, or because the maternal and fetal condition affected the image display? It is really difficult to have accurate conclusions. The presumption of responsibility of the medical institution for medical institutions is not fair? How to perfect the legal mechanism?

3, if the medical accident appraisal conclusion that medical negligence, but the results and the patient damage there is no causal relationship between medical institutions, whether liability?

Li AiqunBelow we to Cui A and B hospital medical accident damage compensation dispute case discussion. In this case, the problem is relatively small, we can put their views fully to talk it out.

Pan Xia (Dongying intermediate people's court vice president)The first problem, personally think that if the patient to bring an action in tort, should take the medical institution infringes the right of informed choice is appropriate. Because according to the "measures" the implementation of maternal and infant health care law the fourth regulation, citizens enjoy the right of informed choice of maternal and child health hospital, the case for breach of obligation caused by prenatal diagnosis, children with disabilities to wrongful birth, damage to the parents enjoy the right of informed choice. The selection against health right is not appropriate, because of a physical defect in children is caused by the mother, no causal relationship with medical institutions.

As for Liu Mouzhi female as the plaintiff's question, actually involves the main body the right to request the compensation liability, personal opinion is the main body of mother, father can be used as a claim, the child may not bring a separate lawsuit, because their parents to obtain compensation can compensate for the damage suffered by children. Of course, if the parents are giving up action or parents, in this case, the children have the right to own disability suffered damages, but also fair.

The scope of compensation of such cases, personally think that Liu Mouzhi female medical expenses and disability compensation can be used as additional costs of maintenance support parents. If the extra cost of raising children excluded, is unfair to the parents, is also detrimental to the growth of children.

The second problem of this case, actually involves the fault standard review of the appraisal conclusion or accident conclusion should be adopted. In the civil law or tort, fault usually subjective standard and objective standard of two, I personally think that is the case of fault review should hold an objective standard, also is the general level the doctor or hospital level can be identified as the standard. Of course, we cannot deny, medical science is in the continuous process of development, science and technology is an imperfect, but the same condition in the township hospitals and provincial, national hospital should have different objective standard, so we in the review, shall hold a customer as basic, due consideration subjective, and consider the fault standard similar geographical conditions.

The third problem, because this kind of case is the applicable law and the two track system processing mechanism, if the plaintiff is the choice of compensation for medical accidents, no causal relationship now, the hospital has no responsibility for compensation; if the patient is taking the compensation for medical damage infringement, go this way, the fault there is no causality, may have to return to the last case discussion, you may need a medical fault identification, to determine his fault and causality to decide, not to say can make it rigidly uniform judgment should or should not assume liability to pay compensation.

If you go the way of infringement, the medical accident identification that he has fault, but no causality, judges should have a basic understanding of: if there is a problem with the feeling, can get a fault identification, medical fault and the causal relationships as a reference, and ultimately determine the amount of compensation, incomplete in accordance with the medical accident. Here, we see patients is to take what kind of remedy, if the accident, you go that way, if we do not take the accident, go to infringement, or supplementary identification. Because the accident is two levels of identification, a first identification, a re identification, but from the accident treatment regulations, also do not rule out a supplementary identification. If we can solve this problem by adding identification or supplement evidence, can be. If you can't go this way, then the medical fault identification to solve this problem is also possible.

Xu Fei (vice president of Dongying intermediate people's court)This is the case in Dongying district court mediation, I do not judge right. I think this case is not medical malpractice, is eugenics choice problem. The hospital gave her B ultrasound, her own child has a problem, and the hospital is it doesn't matter. This case as a medical accident is not appropriate. We discuss later encountered a similar case, how to grasp the standards, like this kind of case, then according to this standard, make identification of medicine, we should look and talk to him. In my opinion, if you seriously do research, it will not happen. Judges may not understand the situation is. The judge to see what evidence can be used for which evidence, the use of evidence is the power of judges, you cannot say you are in the identification of levels China medicine will do, must use, you can convince the judge? The judge didn't believe what will you do.

Jiang JieFirst of all thank you for leadership published his true view of the case, the case was in our hospital, we can see that this case and the last a very different place, the women in the production process, the maternal no birth injury, as the child was born according to the provisions of the score is, no birth injury, unlike the last such birth trauma fracture of the clavicle, the production process is a very smooth process, children in the delivery process is not a problem, but after birth, the child was diagnosed with congenital vertebral disease, the patient the prosecution to the court, he was as a medical accident to v. later, through the expertise of Medical Association, as the three level is a medical accident, to tell the truth, our hospital is not convinced of this identification at the time, but consider the following aspects: the first is said before, patients may not consider a further appeal, time will be extended, in our hospital from energy seems reluctant to delay; another, possibly leaders know we B hospital present in either of the president of the Secretary, I feel, the two main leaders of our college is benevolence person In the heart of leadership, looked at the patient side is the family difficulties, then acquiesced in this part. But in fact, as my personal opinion, as a medical accident, medical personnel in the organization is a practicing medical, medical routine, in violation of the laws and regulations, and cause harm to the patient, as this behavior should be a medical accident. In the whole process of diagnosis and treatment of the patients, treatment process, delivery process are not the problem, by her own admission. It involved the diagnosis process of our hospital have the wrong problem. Just some judges said, is the problem or diagnosis diagnostic conditions shall not diagnosed, then we check the related information, B ultrasound method is currently doing antenatal examination is widely used, because relatively speaking, this is the most secure method, as for other radiation, magnetic are all have an effect on children's prenatal examination for pregnant women, as B ultrasound examination of fetal malformation, the rate should be 60-70%, that is to say otherwise 30-40% with B ultrasound technology is now does not simply check out, and the patient also does exist some situations not check out, say her position, posture and bulging, bulge size, all this all the patients become 30 to 40 percent of people, from this point that our diagnosis is no problem, diagnosis and treatment are not the problem, we should not constitute medical malpractice, but in view of the points, but also take into account the existence of the medical profession the unfair phenomenon, so we acquiesced in the hospital, appear this kind of circumstance.

Liu XueshengIn this case, the first is the qualitative problem. Prenatal examination did not reveal any problems found, after the birth of this disease, the medical institutions have responsibility? There are many such cases, theory called "Wrongful birth, some parents of young children as a plaintiff, some children as a plaintiff, are generally required to pay medical expenses. How do you know to this kind of case, from the proceedings in the view of the subject, his parents request, can lift the inspection costs, mental damage. He could not claim the rights for the child after the birth of a child, because he is a civil subject. The child can claim what rights? We are exploring this problem, but can't find what rights, but once he was born as a civil subject, was not a mistake, but is justified. We now abortion is legal, as children do not have the right to choose whether to birth, nor ability, after birth is the civil main body, are not entitled to claim. Once a person's birth, child rearing parents legal obligation, no causal relationship and medical institutions, resulting in the child's illness is not medical institutions. The case is not found defects was born, not medical malpractice, because there is no corresponding fault, the case shall be his parents argued, that his medical expenses and mental damages. Many people think that the most investigated for medical damage. About this kind of case not clear legal norm. We can only go to analysis, analysis of the fault and causality.

For the third problem, illegality and fault behavior is linked together, will lead to not constitute medical malpractice, he will not bear the responsibility. Now there are fault liability principle, the principle of no fault liability and fair principle, in the medical dispute, is mainly the fault liability, but in many cases the fair responsibility to consider will be considered, condition fair liability applicable both without fault, but the existence of a causal relationship. If there is a causal relationship but both without fault, and the harm is very great, not given proper compensation was unfair, in this case can be considered suitable for the fair responsibility principle, but there are strict applied prerequisites. Do have a fault, and there is no causal relationship, assume no liability, although the fault such as the existence of irregularities, but not for specification is not causing you a consequence of this, also should not bear the responsibility.

Li AiqunTo everyone's statement I summary.

On the first question, this case is a mediation case, Dongying district court presided over the mediation and the parties to be fixed is no problem, cause no problem. After the identification of medical accidents, must be set for the medical accident disputes. The child is not the case of claims subject, but his parents, violations of the right to know and the right to choose his birth parents, children's rights and interests are not infringed, disability compensation should not be compensation.

The second problem, how to perfect the legislation is legislative issues, we will discuss only the judicial to grasp, how to properly handle. Different cases to different grasp, should consider the development of medical technology level, the current medical level is still not enough to solve cannot let the hospital take responsibility. At the same time also to distinguish between hospital to consider, the same disease, other same level hospital can detect, diagnosis and treatment, you should also be able to detect, diagnosis and treatment. If you are a central hospital, hospital, may have to bear the responsibility, the same in King Township Hospital, might not have found it responsibility, should be treated differently.

Third problems and Liu judges agree, can not be stained with the hospital side let the hospital take responsibility, no causal relationship how can you let the hospital take responsibility. He is in violation of relevant regulations, such as the patient's right to know, informing obligation did not fulfill the condition, whether they will bear the responsibility for compensation? Of course not, but also with the medical damage there is no causal relationship between the consequences, no causal relationship can not let him take responsibility. This kind of problem in practice cognition misunderstanding, we must pay attention to.