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The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Medical Damage Liability Disputes (hereinafter referred to as the "Explanation") was adopted by the Supreme People's Court Judicial Committee at its 1713th meeting on March 27, 2017. It will take effect on December 14th.
The full text of "Explanation" is a total of 26 articles, and the trial ideas and referee scales are further unified in terms of scope of application, burden of proof, damage identification, liability commitment, product quality issues, and compensation standards.
1. The scope of application of Interpretation.
This interpretation applies to cases where the first patient requests a medical institution on the grounds of personal or property damage during the medical treatment, and the producer, seller or blood supply agency of the medical product bears the tort liability.
This explanation applies to cases of infringement disputes arising from personal or property damage in medical and cosmetic activities performed by a medical institution or a medical institution that provides a medical beauty department.
This interpretation is not applicable to cases of medical service contract disputes filed by the parties.
Lawyer Interpretation:
This clause clarifies the scope of application of the Interpretation. It should be noted that:
1. The medical interpretation should be subject to the interpretation. However, medical beauty and life beauty should be differentiated, the latter is not applicable to the Interpretation. According to Article 2 of the “Administrative Measures for Medical Beauty Services”, medical beauty refers to the use of surgery, drugs, medical equipment and other traumatic or invasive medical techniques to describe the appearance of human beings and the various forms of human body. Repair and remodeling. Therefore, life beauty such as hairdressing, manicure, etc. are not the scope of the "Explanation" adjustment.
2. This “Interpretation” is not applicable to cases of medical service contract disputes filed by patients with medical institutions. During the medical institution's visit, if the medical institution infringes the patient's personal and property rights, the medical institution has a medical service contract relationship with the patient at the same time. Therefore, this creates a situation in which the liability for breach of contract and the tort liability compete. The patient may choose to file a lawsuit for breach of contract or infringement against the medical institution, but if the lawsuit for breach of contract is chosen, the Interpretation shall not apply, but the relevant provisions of the Contract Law shall apply.
Second, the burden of proof of medical infringement disputes.
Articles 4 to 7 of the Interpretation stipulate the burden of proof for patients and medical institutions in medical damage disputes.
Article 4 If a patient claims to be liable for compensation according to the provisions of Article 54 of the Tort Liability Law, he shall submit evidence to the medical institution for treatment and damage.
If the patient is unable to submit evidence that the medical institution and its medical staff have a causal relationship between the fault, the medical treatment behavior and the damage, and the application for medical damage assessment is filed according to law, the people's court shall grant permission.
Where a medical institution claims not to assume responsibility, it shall bear the burden of proof for the defense of the circumstances as stipulated in the first paragraph of Article 60 of the Tort Liability Law.
Lawyer Interpretation:
1. Article 54 of the Tort Liability Law stipulates that if a patient suffers damage during the medical treatment activities and the medical institution and its medical personnel are at fault, the medical institution shall be liable for compensation. This article clarifies that the principle of liability for medical institutions is the principle of fault liability. Article 4, paragraph 1 and paragraph 2 of the Interpretation further clarify the specific evidences that the patient should bear: (1) the facts of the visit; (2) the facts of the damage; (3) the fault of the medical institution and its medical staff; There is a causal relationship between the behavior of the treatment and the consequences of the damage.
2. There is evidence of a causal relationship between the medical institution and its medical staff, and the patient may apply for medical damage identification.
Third, the medical damage identification related issues.
Articles 8 to 16 of the Interpretation stipulate the applications for medical damage appraisal, the identification of appraisers, the appraisal procedures, the appraisal matters, the appraisal opinions, and the appearance of specialized knowledge personnel.
Article 9 Where a party applies for medical damage appraisal, the applicator shall determine the appraiser by negotiation.
The party concerned cannot reach an agreement on the appraiser, and the people's court proposes a method for determining the appraiser. If the parties agree, the method shall be determined according to the method; if the party disagrees, the people's court shall designate it.
The appraisers shall be determined from experts who have the corresponding appraisal ability and meet the appraisal requirements.
Lawyer Interpretation:
In the medical damage identification, the appraisers and their experts should have the corresponding appraisal ability. In other words, whether it is identified in a medical association or a judicial appraisal agency. First, the appraisal organization must have the qualification for appraisal; secondly, the corresponding expert of the appraisal organization should have the ability to meet the requirements of the appraisal. If it involves the identification of specialized problems in clinical medicine, it should have qualification requirements for clinical medical identification; if it involves special issues in forensic science, it should have qualification requirements for forensic medicine.
Article 13 The appraisal opinion shall be cross-examined by the parties.
If the party applies for the appraiser to testify in court, if the people's court examines and approves, or the people's court considers that the appraiser is necessary to appear in court, it shall notify the appraiser to testify in court. The parties agree that the appraiser can give evidence by means of written instructions, audiovisual transmission technology or audiovisual materials.
If the appraiser cannot appear in court due to force majeure or other legitimate reasons such as health reasons, natural disasters, etc., the court may postpone the hearing; with the permission of the people's court, it may also testify by means of written instructions, audio-visual transmission technology or audio-visual materials.
If there is no reason for the preceding paragraph, the appraiser refuses to testify in court, and if the party does not approve the appraisal opinion, the appraisal opinion will not be accepted.
Lawyer Interpretation:
This article again clarifies that if the court examines that the party has applied for the appraiser to appear in court or the court believes that the appraiser should appear in court, the appraiser shall appear in court unless there is a relevant situation as stipulated in this article. If the appraiser should appear in court without appearing in court, the court will not accept the appraisal opinion.
Article 15: Where the parties entrust the appraisers to make medical damage appraisal opinions, if the other parties approve, they may accept the letter.
Where the parties jointly entrust the appraisers to make medical damage appraisal opinions, if one party does not approve, they shall submit clear objections and reasons. Upon examination, if there is sufficient evidence to prove that the objection is established, the appraisal opinion will not be accepted; if the objection is not established, it shall be accepted.
Lawyer Interpretation:
This article clarifies that the parties may entrust or jointly entrust the appraiser to conduct medical damage appraisal. If the joint commission is to be jointly authenticated, the party shall adopt the letter for the court of appraisal opinion unless there is evidence to prove that the content and reason of the objection are established.
Fourth, the issue of medical product liability.
Articles 21 to 23 of the Interpretation stipulate the responsibility for the responsibility of medical products.
Article 23 The producers and sellers of medical products know that the defects of medical products are still produced or sold, causing death or serious damage to the patients. The infringer requests the producers and sellers to compensate for the losses and the punitive damages of less than two times. The people's court should support it.
Lawyer Interpretation:
This article is the first to clarify the principle of punitive damages for medical products. That is to say, the producers and sellers of medical products still produce and sell the products without knowing the defects of the medical products, causing serious death or serious damage to the patients, and the patients request the producers or sellers to compensate for the losses and losses suffered. If the punitive damages are less than twice, the people's court shall support it.
5. The issue of medical damage compensation standards.
Article 24: The infringed person shall simultaneously sue two or more medical institutions to assume the liability for compensation. After the people's court has tried the case, the medical institution at the place where the court is accused shall not be liable for compensation according to law, and other medical institutions shall be liable for compensation, disability compensation, and death. The calculation of compensation shall be handled separately as follows:
(1) If a medical institution assumes responsibility, it shall be implemented in accordance with the compensation standard of the location of the medical institution;
(2) If two or more medical institutions are responsible, they may be implemented in accordance with the standards of the medical institutions where the compensation standards are high.
Lawyer Interpretation:
This article clarifies that the standard of compensation is high or low. In the case of two or two medical institutions jointly infringing, the compensation standard shall be implemented in accordance with the standard of the medical institution where the compensation standard is high.
Conclusion:
As stated by the head of the Research Office of the Supreme People's Court on the press release of the Interpretation, the formulation and publication of the Interpretation not only further unifies the court's thinking and the scale of the judgment, but also implements the Party Central Committee by the Supreme People's Court. The spirit of the important instructions of General Secretary Xi Jinping and the promotion of the implementation of the new era of healthy China strategy, the promotion of a harmonious doctor-patient relationship, the promotion of safe hospital construction, and the maintenance of the health and well-being of the broad masses of the people.
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