Reprinted from China Legal Information Network

[Case]

The plaintiff Jia Jinglan filed a lawsuit stating that on July 30, 2005, the plaintiff was diagnosed with cholecystitis and admitted to the defendant Shangqiu Third People's Hospital for treatment. On August 2 of the same year, the plaintiff underwent cholecystectomy. Due to the defendant's incorrect diagnosis and treatment of the plaintiff, the plaintiff became unconscious. During the rescue period, due to a power outage in the ward and the defendant's lack of emergency measures for power outage, the plaintiff was in a persistent vegetative state due to cerebral hypoxia, resulting in a first degree disability. For this reason, the plaintiff went to Henan Provincial People's Hospital and Shangqiu * * * People's Hospital for treatment, and spent hundreds of thousands of yuan on medical expenses. However, the plaintiff's persistent vegetative state is irreversible. The current situation and various losses of the plaintiff are all caused by the defendant's medical negligence. In order to protect the plaintiff's legitimate rights and interests, the plaintiff has filed a lawsuit with the court to request that the defendant compensate a total of 520000 yuan for medical expenses, loss of work expenses, nursing expenses, transportation expenses, hospitalization meal subsidies, nutrition expenses, disability compensation, emotional distress compensation, rehabilitation expenses, appraisal fees, and other expenses.

The defendant, the Third People's Hospital of Shangqiu City, argued that: (1) the plaintiff has no factual and legal basis to prove that the defendant was at fault during its diagnosis and treatment process. The plaintiff should first undergo a medical accident appraisal, determine the hospital's responsibility, and then conduct a judicial causal relationship appraisal. (2) Power outage is a fact, but whether it occurs or not is not under the control of the hospital. The power department should be added as the defendant, and the power outage causing brain hypoxia and the plaintiff's vegetative state is not a * * * * reason. Based on this, the people's court should dismiss the plaintiff's lawsuit request in accordance with the law.

After trial, the People's Court of Liangyuan District, Shangqiu City found that on the evening of July 30, 2005, the plaintiff was hospitalized for treatment at the defendant Shangqiu Third People's Hospital due to abdominal pain, and was diagnosed with cholecystitis. On August 2 of the same year, he underwent cholecystectomy and developed a coma after the surgery. At around 4am on August 5th, during the rescue period, the ward suddenly experienced a power outage. Due to the defendant's inadequate emergency measures, the plaintiff suffered from prolonged brain hypoxia, resulting in sustained vegetative damage to brain nerve cells. The plaintiff was hospitalized at the defendant's office until August 10, 2005, and incurred medical expenses of 25337.51 yuan. On the same day, he was transferred to Henan Provincial People's Hospital for inpatient treatment, and was hospitalized until August 29th of the same year, with a medical expense of 65231.5 yuan. The diagnostic opinion in the diagnosis certificate issued by Henan Provincial People's Hospital is: the patient has multiple organ failure, septic shock, and postoperative acute suppurative cholecystitis. The treatment process and treatment suggestion are as follows: it is recommended to return to the local hospital for further formal treatment after automatic discharge, continue to resist infection, protect the kidneys, improve brain metabolism, improve cerebral blood flow, and promote awakening treatment. The plaintiff was transferred to * * * People's Hospital in Shangqiu City for hospitalization and treatment on the day of discharge from Henan Provincial People's Hospital, and was hospitalized until November 21 of the same year. In addition, a total of 49663.9 yuan was paid for medical expenses during the defendant's treatment period at the * * * People's Hospital in Shangqiu City. The diagnostic opinion in the diagnosis certificate issued by the * * * People's Hospital of Shangqiu City is: hypoxic brain damage and vegetative state. The treatment process and suggestions include: strengthening nursing, accompanying 2 people, passive limb exercise, preventing muscle atrophy, medication treatment, etc. The plaintiff was hospitalized three times for 111 days. During the plaintiff's hospitalization, a subsidy of 7090 yuan was provided for medication expenses due to treatment needs. After discharge, the expenditure on purchased rehabilitation drugs was 1446 yuan, and transportation expenses were paid at 2020 yuan. The plaintiff has not yet recovered. The appraisal conclusion of the Jingjiu Judicial Appraisal Center in Shangqiu City is that the Third People's Hospital of Shangqiu City had a series of faults and defects in the diagnosis and treatment of Jia Jinglan's cholecystectomy, which is directly related to the serious adverse consequences of Jia Jinglan's "persistent vegetative state" (vegetative person) constituting a level 1 disability. The plaintiff sued this court for compensation based on the defendant's serious negligence during the treatment process, resulting in a dispute. In the lawsuit, the defendant applied to the People's Court to entrust the Medical Association to conduct a medical accident appraisal. The plaintiff failed to cooperate on the grounds that they had already conducted a causal relationship judicial appraisal and fulfilled their burden of proof, resulting in the termination of the medical accident technical appraisal.

It was also found that the monthly salary income of nursing staff Jia Xiangmin was 1972 yuan, and the per capita disposable income of urban residents in Henan Province in 2005 was 8667.97 yuan.

Trial

After the trial by the People's Court of Liangyuan District, it was found that the plaintiff's sudden power outage in the ward during the defendant's hospitalization was an objective fact, and the defendant recognized it. Based on the judicial appraisal certificate issued by the Jingjiu Judicial Appraisal Center in Shangqiu, combined with the diagnostic certificates from Henan Provincial People's Hospital and * * * People's Hospital in Shangqiu City, it is sufficient to determine that due to a sudden power outage in the ward, the ventilator used by the plaintiff could not work for a long time, and the defendant did not take emergency measures in a timely manner, resulting in brain hypoxia and damage to the plaintiff's brain nerve cells in a vegetative state, constituting a level 1 disability. The plaintiff was hospitalized for treatment at the defendant's place due to illness, and the defendant has an obligation to ensure the plaintiff's personal safety. During the plaintiff's coma rescue period, the defendant should know that emergency equipment, such as power outages, will have serious adverse consequences on the plaintiff's life and health. The defendant should have prepared emergency equipment but failed to act, which is a gross negligence. The plaintiff shall bear civil liability for serious personal injury caused by the defendant's gross negligence during the treatment process. Therefore, the plaintiff's demand for compensation for medical expenses and other losses from the defendant complies with legal provisions, and this court supports it. The medical expenses are calculated based on receipts as 25337.51 yuan+65231.5 yuan+49663.9 yuan+7090 yuan+1446 yuan=148768.91 yuan. The disability compensation is 8667.97 yuan/year x 16 years=138687.52 yuan. Jia Xiangmin's nursing delay fee is 1972 yuan/month ÷ 30 days x 111 days=7296.4 yuan. The cost of nursing delay for another relative is 8667.92 yuan/year ÷ 365 days x 111 days=2636 yuan. The nutrition fee is 888 yuan for 111 days x 8 yuan/day, and the hospitalization meal allowance is 111 days x 10 yuan/day=1110 yuan. Compensation of 1500 yuan for transportation expenses is discretionary. Considering the defendant's degree of fault, economic ability to bear responsibility, and extremely serious consequences caused to the plaintiff in this case, which have caused tremendous mental and physical pain and torture to the plaintiff, it is appropriate for the defendant to compensate the plaintiff with a compensation of 50000 yuan for mental damages. The total amount of the above items is 350886.83 yuan.

The People's Court of Liangyuan District, Shangqiu City, in accordance with Article 106 (2) and Article 119 of the General Principles of the Civil Law of the People's Republic of China, as well as Article * * of the Notice of the High People's Court on the Trial of Civil Cases of Medical Disputes with Reference to the Regulations on the Handling of Medical Accidents, has made the following judgment:

1、 The defendant, the Third People's Hospital of Shangqiu City, shall compensate the plaintiff Jia Jinglan with a total of 350886.83 yuan in medical expenses, disability compensation, nursing expenses, transportation expenses, nutrition expenses, hospitalization meal subsidies, and mental distress compensation within 15 days from the effective date of the judgment.

2、 The acceptance fee for this case is 10210 yuan, other fees are 3060 yuan, appraisal fee is 3000 yuan, the defendant bears 13270 yuan, and the plaintiff bears 3000 yuan.

After the first instance judgment was made, the defendant Shangqiu Third People's Hospital appealed against it, stating that the facts determined in the original trial were unclear, the evidence was insufficient, and the judgment was inappropriate. They requested the second instance court to revoke the original judgment and change the judgment to reject Jia Jinglan's lawsuit request. The reason is: 1. Judicial appraisal was unilaterally entrusted by the appellant, and its procedure violated the rules of evidence. The content of judicial appraisal is illegal, and the appraisers do not have medical appraisal qualifications. The original trial found that the judicial appraisal did not exceed the scope of appraisal and was incorrect. 2. The first instance erroneously cited an analysis opinion from a judicial appraisal that did not qualify for medical appraisal, confirming that the respondent was in a vegetative state due to inadequate emergency measures taken by the appellant, resulting in prolonged hypoxia. This case requires medical accident appraisal. In the first instance, the appellant applied for medical accident appraisal, but due to the lack of cooperation of the respondent, it could not be carried out, and the respondent should bear the adverse legal consequences. 3. The evidence of the compensation amount is insufficient. The first instance judgment determined that the diagnosis certificate submitted by the appellant indicated the need for two people's care, but the appellant did not see the explanation. The original trial confirmed the other person's care expenses; The fee bill submitted by the appellant is the cost of treating their own illness and should not be included in the compensation amount; The documents for the respondent's purchase of drugs and devices should not be protected because the documents themselves do not have legality; The transportation fees and train tickets submitted by the appellant do not specify their purpose and are not within the scope of compensation; The nursing staff salary certificate provided by the respondent is a stamped and then written certificate, and it is also a certificate from the personnel department; The Regulations on the Handling of Medical Accidents stipulate that the compensation for mental distress caused by disability shall be calculated for three years, while the first instance judgment of 50000 yuan lacks basis.

After trial by the Intermediate People's Court of Shangqiu City, Henan Province, it was found that Jia Jinglan was hospitalized at the defendant Shangqiu Third People's Hospital for treatment of abdominal pain and underwent cholecystectomy. After the surgery, she developed a coma and eventually developed a vegetative state. The evidence is sufficient and can be confirmed. Except for Jia Jinglan's preoperative examination expenses of 1500 yuan and some purchased drugs expenses of 1056 yuan, which should not be compensated by the defendant, the rest believe that the first instance viewpoint is correct and the judgment is appropriate. According to the provisions of Article 153, Paragraph (1) and (3) of the Civil Procedure Law of the People's Republic of China, the Civil Judgment of the People's Court of Liangyuan (2006) Shangliang Minchu No. 188 is amended as follows: The Third People's Hospital of Shangqiu City shall compensate Jia Jinglan with a total of RMB 348330.83 for medical expenses, disability compensation, transportation expenses, nursing expenses, nutrition expenses, hospitalization meal subsidies, and mental injury compensation within 15 days from the effective date of this judgment. The first instance case acceptance fee is 10210 yuan, other fees are 3060 yuan, and the appraisal fee is 3000 yuan. The Third People's Hospital of Shangqiu City will bear 13000 yuan, and Jia Jinglan will bear 3270 yuan. The second instance litigation cost is 13270 yuan, which will be borne by the Third People's Hospital of Shangqiu City at 13000 yuan and by Jia Jinglan at 270 yuan.

[Analysis]

1、 The application of laws and regulations in the determination of medical accident liability

At present, the regulations on the determination of liability for medical accidents in China can be roughly divided into two different principles of attribution, as well as two different legal and regulatory systems formed under the influence of the aforementioned principles of attribution. One is the "accident theory" and the "Regulations on the Handling of Medical Accidents" that emerged under the influence of this main viewpoint. The "accident theory" emphasizes that after a medical dispute occurs, patients must first obtain a medical accident appraisal before they can sue the hospital for compensation. Otherwise, the court should not accept the medical accident appraisal as a prerequisite for initiating the judicial compensation procedure. The Regulations on the Handling of Medical Accidents basically adopt the perspective of "accident theory", stipulating that "if it does not belong to a medical accident, medical institutions shall not be liable for compensation.". The second is the "fault theory" and the judicial interpretation of the "Notice on the Trial of Medical Dispute Civil Cases with Reference to the Regulations on the Handling of Medical Accidents" that emerged under the influence of this main viewpoint. The theory of fault emphasizes that the standard for measuring civil liability for compensation for personal infringement damages is whether the actor is subjectively at fault, rather than an accident. That is, if the hospital cannot provide evidence of the lack of causal relationship and fault between medical behavior and damage results in the lawsuit, it should bear the legal consequences of losing the lawsuit. The judicial interpretation basically adopts the perspective of "fault theory", which stipulates that for medical compensation disputes caused by medical accidents that occur after the implementation of the Regulations on the Handling of Medical Accidents, if sued in court, the compensation liability shall be determined by referring to the compensation principles, scope, and calculation methods stipulated in the Regulations on the Handling of Medical Accidents. Other medical compensation disputes arising from reasons other than medical accidents shall be governed by the provisions of the General Principles of Civil Law. It is not difficult to see that there are two distinct perspectives and understandings in dealing with medical disputes.

The author believes that only those who believe that medical accidents can be accepted by the people's court as medical injury compensation cases; The viewpoint and understanding that medical institutions do not assume compensation responsibility if it does not constitute a medical accident, and the people's court cannot accept it as a medical injury compensation case, is both theoretically and practically incorrect. This is because, firstly, the Regulations on the Handling of Medical Accidents focus on the administrative handling and supervision of medical accidents, and belong to the administrative procedural norms for medical administrative departments to handle medical accidents. According to the provisions of China's Legislative Law, the Regulations on the Handling of Medical Accidents, as an administrative regulation, have no authority to regulate the trial work of people's courts on the compensation responsibility for medical accidents. Secondly, although the Regulations on the Handling of Medical Accidents also stipulate the corresponding civil liability for damages that medical institutions should bear due to medical accidents, this regulation does not belong to the norms of civil substantive law and is purely an administrative legal norm. Medical injury compensation cases are not limited to medical accident damages, but should also include non accident medical damages that do not constitute medical accidents, but according to legal provisions, medical institutions should bear responsibility. Thirdly, according to the Regulations on the Handling of Medical Accidents, if a medical accident is constituted, the medical institution shall bear the liability for compensation; Medical institutions shall not be liable for compensation if it does not constitute a medical accident. It simply defines medical disputes as medical accidents, excluding medical errors that do not constitute medical accidents and non medical accidents from the scope of medical compensation. This obviously goes against the basic legal principle of civil law that "citizens and legal persons who, due to their fault, infringe upon the property of the state or collective, and infringe upon the property and personal of others, shall bear civil liability.". Therefore, the application of the General Principles of the Civil Law of the People's Republic of China and the Civil Procedure Law of the People's Republic of China by the two levels of people's courts in the trial of the case is in line with the current legal spirit and basic judicial concepts in China.

2、 On the Recognition of the Facts and Responsibilities of Medical Errors

The two levels of people's courts, based on the judicial appraisal certificate issued by the Shangqiu Jingjiu Judicial Appraisal Center, combined with the diagnosis certificates of Henan Provincial People's Hospital and Shangqiu * * People's Hospital, have determined the fact that Jia Jinglan was hospitalized for abdominal pain at the defendant Shangqiu Third People's Hospital, underwent cholecystectomy, and developed coma after the surgery, ultimately leading to a vegetative state. They also believe that due to a sudden power outage in the ward, the plaintiff's ventilator could not work for a long time, and the defendant did not take emergency measures in a timely manner, resulting in brain hypoxia and damage to the plaintiff's brain nerve cells in a vegetative state, constituting a level 1 disability. The evidence is sufficient and can be confirmed. The author believes that the determination of the facts and the acceptance of evidence by the two levels of people's courts in this case are in line with relevant legal provisions in China and are correct.

Medical accident technical appraisal, according to its legal attributes, is a conclusion drawn by the Medical Accident Appraisal Committee on whether the medical department has gross negligence in medical behavior. The conclusion of medical accident technical appraisal is the basis for health administrative organs to handle medical accident disputes. However, if it involves civil damage compensation litigation, whether to bear civil liability is not necessarily related to the conclusion of medical accident technical appraisal. Therefore, medical accident technical appraisal is not the only basis for the People's Court to hear medical dispute cases. In other words, "the conclusion of medical accident technical appraisal is only evidence for the people's court to review and determine the facts of the case. Whether it is used as the basis for determining the medical unit's liability for compensation should be cross examined by the court.".

***Article 28 of the "Several Provisions on Evidence in Civil Litigation" of the Supreme People's Court stipulates: "If one party entrusts a relevant department to make an appraisal conclusion on their own, and the other party has sufficient evidence to refute and apply for re appraisal, the people's court shall allow it.". This regulation clarifies that the parties have the right to unilaterally entrust relevant departments to conduct appraisal. Although the Third People's Hospital of Shangqiu City has raised objections to the judicial appraisal conclusion, it has not provided sufficient reasons and evidence to refute it in the first and second trials of this case. Therefore, the first instance court's failure to approve its application for re appraisal does not violate legal provisions. This case belongs to a medical negligence compensation dispute. According to the provisions of the Notice of the * * * High People's Court on the Trial of Civil Cases of Medical Disputes with Reference to the Regulations on the Handling of Medical Accidents, medical accident appraisal is not necessary, but judicial appraisal can be conducted. The Shangqiu Jingjiu Judicial Appraisal Center holds a judicial appraisal license issued by the Henan Provincial Department of Justice and has the qualification for judicial appraisal. The judicial appraisal license shows that its appraisal business scope includes forensic appraisal, forensic pathological appraisal, and other aspects. Regarding whether Jia Jinglan was at fault with the hospital during his hospitalization at the Third People's Hospital of Shangqiu City and the relationship with Jia Jinglan's adverse consequences, as well as whether the appraisal conclusion made by Jia Jinglan's current disability assessment did not exceed his professional scope, and all three appraisers have clinical appraisal qualifications. The appraisal process is legal. For medical disputes between doctors and patients, there is no explicit legal provision that medical accident identification must be carried out first, followed by causal relationship judicial identification. Therefore, the application for medical accident appraisal requested by the Third People's Hospital of Shangqiu City in the second instance lacks legal basis, and the failure to conduct appraisal does not affect the outcome of this case. The court's refusal to allow it is also in accordance with the above legal provisions. The Third People's Hospital of Shangqiu City did not provide evidence that the appraisal conclusion was indeed incorrect. Therefore, the legal validity of the judicial appraisal conclusion should be confirmed and can be used as the basis for the determination of this case. The two-level people's court has determined that the Third People's Hospital of Shangqiu City committed gross negligence in the diagnosis and treatment process of Jia Jinglan, which is objective and truthful, and the evidence is sufficient.

3、 Can the power outage behavior of the power sector be a reason for medical exemption, and should the power sector be added as the defendant

***The Notice of the High People's Court on the Trial of Civil Cases of Medical Disputes with Reference to the Regulations on the Handling of Medical Accidents stipulates that if a medical compensation dispute arises from a medical accident after the implementation of the regulations and is brought to the court, it shall be handled in accordance with the relevant provisions of the regulations; Other medical compensation disputes arising from reasons other than medical accidents shall be governed by the provisions of the General Principles of Civil Law. Article 2 of this notice stipulates that in civil trials, if the people's court decides to conduct judicial appraisal of medical accidents based on the application of the parties or their authority, the appraisal shall be organized by the medical association as stipulated in the regulations. If other medical compensation disputes arising from reasons other than medical accidents require judicial appraisal, the appraisal shall be organized in accordance with the Regulations on the Administration of Judicial Appraisal Entrusted by People's Courts to Foreign Parties. According to general practice, in the event of a doctor-patient dispute, the first step is to conduct a medical accident appraisal. If it does not constitute a medical accident, then a judicial causal relationship appraisal is conducted.

Based on this case, * * *, the plaintiff's cause of action is a medical negligence compensation dispute; Secondly, during the rescue process, the plaintiff suffered from a power outage in the hospital, resulting in cerebral hypoxia and vegetative state, which is not a medical behavior, and the provisions of the General Principles of Civil Law should be applied. In the lawsuit, the defendant, the Third People's Hospital of Shangqiu City, applied for medical accident appraisal. The plaintiff, Jia Jinglan, refused to cooperate as she had fulfilled her burden of proof, resulting in the termination of the medical accident appraisal. However, the defendant did not raise substantial objections to the judicial appraisal certificate issued by the Shangqiu Jingjiu Judicial Appraisal Center before the original complaint and did not apply for re appraisal. According to the spirit of Article 28 of the Several Provisions on Evidence in Civil Litigation issued by the * * * High People's Court, if one party entrusts the relevant department to make an appraisal conclusion on their own, and the other party has no evidence to refute and apply for re appraisal, the people's court shall accept it. Thirdly, in case of medical disputes between doctors and patients, if there is no explicit legal provision, medical accident appraisal must be conducted first, followed by judicial appraisal of causal relationships. Therefore, the conclusion of judicial causal relationship appraisal should be accepted.

In this case, the hospital argued that the power outage was not under the hospital's control and that the reason for adding the power department as the defendant was not accepted by the court. This is because in the event of a doctor-patient dispute, the patient's counterpart is a medical institution and not the same legal relationship as the power department. Moreover, the patient is in a coma rescue period, and the hospital should be aware that if the rescue equipment encounters unexpected reasons such as power outage, it will have serious adverse consequences on the patient's life and health. It should be equipped with emergency equipment. In this case, the hospital's failure to provide emergency equipment was a gross negligence. Therefore, patients who cause serious harm to their personal health due to the hospital's gross negligence during the treatment process should bear civil liability.