Chapter 28 4. How can one's own family identify one's own family?

On December 15, 1997, Wang Kexiao, a senior teacher at a school in Anhui Province, went to a hospital affiliated to a medical university for treatment due to diabetes.A chief doctor in the cardiovascular ward learned that the patient had a history of coronary heart disease and suggested that the patient be fitted with a pacemaker.Therefore, the doctor underestimated the changes in the condition and possible accidents during the operation. As a result, the patient died of left heart failure on the operating table. The family members of the deceased could not accept the cruel reality of "walking in and carrying out", so they mourned the deceased in the hospital compound, hung banners, and distributed leaflets "Letter to Medical Staff" in the hospital.So why didn't the family members of the deceased apply to the health administrative department to arrange for the medical appraisal committee to make an accident appraisal according to the "Measures for Handling Medical Accidents"?The family members of the deceased said exhaustedly: "The members of the identification committee were arranged by the health administrative department, and they were drawn from various hospitals. After all, how could they come to a fair conclusion when their own family members appraised their own family members?"

Medical appraisal has lost people's trust, which is undoubtedly a great irony for the current medical malpractice appraisal system. The identification conclusion comes from the health administrative department.It can be seen from the composition of the committee that the appraisers are basically practitioners in the medical industry.The nomination of candidates is a matter for the health administrative department, and the people's government at the same level just nods. The office of the appraisal committee is located in the corresponding health administrative organ.Although it is clearly stated in the "Measures for Handling Medical Accidents" that those who have a stake in the accident need to be avoided, but when evaluating oneself in the same industry, if the impartial performance cannot be guaranteed, we must place our hopes on the quality of the appraiser himself and the entire industry relatively healthy.

Although there are evasion provisions in the laws and regulations, for example, in the implementation rules of the medical malpractice handling measures in some places, it is stipulated that the members of the appraisal committee are the parties to the medical accident or event or their close relatives; or their close relatives have an interest in the parties; And other situations that may affect the impartial appraisal, you should avoid it yourself, etc.However, in social practice, relationships between classmates, teachers and students, superiors and subordinates, colleagues, friends, friends of classmates, friends of friends, etc. It is difficult to avoid inextricable connections. Even if we fully believe that the committee members at all levels and places are doctors with decent style, morality and conscience, objectively there is no mechanism to restrict supervision. How can departmental protectionism be eliminated? presence and interference?Therefore, "medical identification" and "father and son identification" are inevitable.

Wang Xiaoping, deputy editor-in-chief of "Legal Guide" in Hefei, put forward a rather heavy point of view on "Southern Weekend" on August 7, 1998: the appraisal committee is equal to the protection committee? The members of the Medical Malpractice Appraisal Committee are composed of doctors from various local hospitals. The appraiser and the appraised are either acquaintances, friends, teachers, students, or colleagues. The identification process is not open to the outside world, nor to the patients and family members of the deceased, but the members of the identification committee must publicly express their views at the meeting.Who is what opinion, as soon as the appraisal meeting is over, it will be circulated privately in various hospitals.You ruthlessly stated in this appraisal that it constitutes a medical liability accident, and it is difficult to guarantee that you or your hospital will not have accidents in the future.In this way, members of the Appraisal Committee will generally be merciful, and major accidents will be reduced to minor ones.

Once it is identified as a first-level accident, the hospital will be downgraded and the charges will be lowered.In this way, in terms of a tertiary first-class hospital, the annual income reduction will be more than 8 figures. According to the new criminal law, the responsible doctor should be held criminally responsible.Faced with such serious consequences that may happen, can the members of the Appraisal Committee keep silent?Even if a small number of committee members find it in their conscience and want to say something fair, it will not help. The conclusion of the appraisal is made according to the principle of the minority obeying the majority.

The Medical Malpractice Appraisal Committee should not be established in the health administrative department, but should become an independent institution, just like the Technical Supervision Bureau is responsible for identifying the authenticity of commodities, and the traffic police team handles traffic accidents.If the counterfeit and shoddy products sold in the mall are identified by the competent department of the manufacturer, and the competent department of the driver involved in the accident handles it, is it fair? The Medical Malpractice Appraisal Committee also often uses "Mr. Sai" to lie, and the most frequently used is "medical accident", that is, "unpredictable individual differences".Since this seemingly scientific hat is suitable for anyone to wear, no matter which medical accident occurs, this sentence can be used to prevaricate.

Zhang Bin, a lawyer from Shanghai Kangzheng Law Firm, and others believe that China's current medical malpractice appraisal committee lacks a supervisory mechanism.The Ministry of Health issued No. 21 (1993) regulations: If the parties are not satisfied with the appraisal conclusion, "because the health administrative department has no jurisdiction and technical review power over the Medical Accident Technical Appraisal Committee at the same level, it shall inform the parties that the case will not be accepted."The Appraisal Committee was originally established under the leadership of the health administrative department, but now they don't care about it, who has the right to manage it?Is it legal?no!The Supreme People's Court also has a clear rule: those who disagree with the medical appraisal conclusion will not be accepted.In this way, the Appraisal Committee has become an organization that transcends the law and is not subject to any restriction and supervision in law, and does not bear the consequences of its actions, which is in fact performing its law enforcement functions.

It is precisely because the Appraisal Committee has this special power of amnesty that they can say that white is white and black is black in the appraisal of medical malpractice, and no one can do anything about it.For many serious first-level medical liability accidents, the grass-roots appraisal committees still made unscrupulous appraisals that they were not medical accidents. Although later, with the unremitting efforts of the victims or their families, a fair conclusion was finally obtained, but no one Those experts who have made identifications that are not medical malpractice will be held accountable.False testimony in the law will be punished, but they still act as their experts, and next time they will carry out such an irresponsible appraisal that obviously favors the party responsible for the incident.Over time, the appraisal committee felt at ease, and the hospital that caused the accident took it for granted.It’s no wonder that an appraisal committee made a fair medical appraisal, but the hospital that caused the accident openly accused the appraisal committee in court: “Why do you turn your elbows outward?” How can you make such an appraisal?" The implication is that if you don't protect the hospital or the doctor who caused the accident, you are just eating inside and out, turning your elbows outward.

It is very difficult for an appraisal committee under such a system not to become a protection committee. No matter how people discuss and criticize, the current medical malpractice handling must be identified by the family members.Some people think that China is a country ruled by law, no matter whether you are in your own family or not, as long as you perform the appraisal duties unfairly, then I can sue you. However, can we really take the Health Bureau or the Appraisal Committee to court? "Southern Weekend" reporter Du Weidong reported such an interesting case: At 1:50 a.m. on August 21, 1997, Jiang Chunwei, who was 21 days before her due date, suddenly bled profusely from her lower body. About 10 minutes later, her husband sent her to the staff hospital of Jinan Chemical Fiber Corporation.There was no obstetrician on duty at the time, and the obstetrician arrived two hours later.After the doctor's diagnosis, Jiang was advised to transfer to another hospital. At 5:30, Jiang was sent to Jinan Central Hospital. The hospital immediately performed a laparotomy on Jiang. The child who was pregnant for more than 9 months could not be saved, and Jiang's uterus was extensively necrotic.Afterwards, Jiang learned from some doctors that she would not be able to conceive for the next three years.

Jiang believes that the cause of this tragedy is that the medical staff of the staff hospital of Jinan Chemical Fiber Corporation did not diagnose and rescue in time.For this reason, she submitted to the Lixia District Health Bureau for a medical malpractice appraisal in November of that year.Months passed without hearing back.It was not until April 23, after Jiang sued the bureau for "administrative inaction" on February 27, 1998, that the bureau went through the medical malpractice appraisal procedures for Jiang. On May 20, 1998, the Lixia District Court of Jinan City, Shandong Province made a judgment on the "administrative refusal case" brought by the pregnant woman Jiang Chunwei to the Lixia District Health Bureau: the defendant was limited to organize a medical malpractice appraisal committee within three months from the date of accepting the plaintiff's application Appraised Jiang Chunwei's medical malpractice, and rejected Jiang Chunwei's request for the defendant to pay 1 yuan for mental damage.

"Since the district health bureau didn't do what it should, why can't it compensate me even 1 yuan for mental damage?" Jiang Chunwei wanted to seek justice for her dead child. She believed that the district court's judgment was just the beginning. Whether the Health Bureau can be the defendant and whether the Appraisal Committee should be held legally responsible have become questions that many people have questioned.According to the "Administrative Procedure Law" and "Civil Procedure Law", administrative functional departments should bear legal responsibility if they fail to perform or perform their statutory duties unfairly.But in medical appraisal, this provision is greatly reduced.The Ministry of Health's "Explanation on Several Issues Concerning the "Measures for Handling Medical Accidents"" stipulates that if the patient refuses to accept the appraisal conclusion or treatment, the responding object is the medical unit involved, and the health administrative department and the Medical Accident Technical Appraisal Committee are generally not the responding objects. .That is to say, they have a special "pardon power", no matter whether they fail to perform or perform their statutory duties unfairly, the law has nothing to do with them.This is where many people express dissatisfaction with the medical appraisal system.Some of the medical disputes we introduced earlier dragged on for several years or even ten years, dragging some victims and their families to exhaustion, and some went bankrupt. Wu Huaiping and Zang Quansi wrote articles pointing out the irrationality of the regulations.They first cited such a case: On August 10, 1993, Kang fell and injured his left arm while riding a bicycle. On August 12, he went to the township health center for treatment. He was diagnosed with a fracture of the humerus of the left arm. The X-ray examination revealed that the steel plate was distorted and there were gaps between the broken bones. On April 28, 1995, he went to the hospital for another operation, and the pain worsened after the operation. In November 1996, the menstrual examination found that the steel plate was broken and the broken bone was not healed. After repeated negotiations with the hospital, the coordination with the medical administration department failed.Kang applied for medical malpractice appraisal by the Municipal Health Bureau. On July 28, 1997, the Municipal Health Bureau accepted Kang's appraisal application and charged 200 yuan for the appraisal.On August 26 of the same year, the Municipal Medical Malpractice Technical Appraisal Committee notified Kang's husband, "Further treatment is required, and the appraisal can only be carried out after the results are clear."The Municipal Health Bureau temporarily refused the appraisal on the grounds that the appraisal basis was not sufficient and the conditions were not met.Kang filed an administrative lawsuit with the court on March 17, 1998, requesting the court to judge the Municipal Health Bureau to perform its statutory duty of identifying medical malpractice. The focus of the dispute in this case is whether the Municipal Health Bureau can become the defendant in this case.Wu Huaiping and Zang Quansi believe that the Municipal Health Bureau can be the defendant in this case. The reasons are as follows: First, the Municipal Health Bureau, as the government’s health administrative department, is responsible for the health administrative work in the region, and has the responsibility to deal with medical accidents or those that may be medical accidents. Events are identified and processed.Second, as a technical appraisal organization, the Medical Malpractice Technical Appraisal Committee does not have administrative functions, and its competent authority should be the administrative body.The Ministry of Health's "Explanation on Several Issues" stipulates that the medical malpractice technical appraisal committee's office shall be located in the corresponding health administrative agency and be under the leadership of the government at the same level, and the health administrative department manages health administrative work on behalf of the government. Therefore, medical malpractice The appraisal committee should be led by the health administrative department at the same level.Third, my country's Administrative Litigation Law stipulates that if there are no special provisions in laws and regulations on the administrative powers of the internal functional agencies of administrative agencies, the administrative agencies should be the defendants. Some scholars believe that under the current circumstances, a "wronged case" investigation system of the "Medical Appraisal Committee" should be established. As long as one of the following situations occurs, it can be classified as a "wronged case": those who have no right to make an appraisal; The personnel or identification procedures violate the regulations; the main evidence for determining the facts is insufficient; the application of laws and regulations is wrong; On January 29, 1999, Sun Kai, a reporter from China Youth Daily, reported another embarrassing incident—the investigator and the respondent had dinner at the same table. The incident happened in Jingning County, Pingliang District, Gansu Province, at the foot of Liupan Mountain. The deceased Ma Yanling was 38 years old at the time.Her older brother Ma Zhixue described what they experienced like this: "My only younger sister, Ma Yanling, was sent to Jingning County Hospital for examination and treatment due to abdominal pain at 1:50 am on October 17, 1995. In addition to the outpatient doctor taking blood tests on the patient in the car, the patient was in severe pain. , the patient's companions were unable to invite Zhang Yonglai, the doctor on duty that night. Zhang Yonglai just sat in the office, simply listened to the oral narrative of the patient's family members and the first visit of a young man who was an intern at Jingning County Hospital, and prescribed a prescription. Then Zhang turned off the lights in the doctor's office and went to sleep. At 3 o'clock in the morning, the nurse knocked on the door of Dr. Zhang Yonglai who was sleeping after failing to insert the needle many times. After Zhang came to the ward sleepily, he stood at the entrance, He only said, "If the pain is too bad, take a dose of pethidine", then turned around and asked the nurse to go to the doctor's office to get the medicine for injection. At 7:40 in the morning, the patient died. I have been to the doctor on duty, but the doctor has never been found." After the patient died, the family buried the body, and went to the hospital the next afternoon to ask: Why didn't the doctor on duty do his duty?Why AWOL?What was the patient's cause of death? One month later, the hospital concluded that "the doctor underestimated the changes in the patient's condition and did not observe the patient closely enough." But Zhang Yonglai did not admit that he was sleeping at the time: "I think that as a doctor, I have done all the work I should do from the beginning to the end of the patient's admission to death. I didn't sleep at all, I didn't sleep all night." The one who can prove that Zhang Yonglai "conducted an examination and made a diagnosis" is the intern who now runs a private clinic in a village in Jingning County.However, the relatives of the deceased questioned this in the relevant materials submitted to the Gansu Provincial Health Department: Zhang Yonglai wrote in the medical records that after the intern came back from the intern holding the sphygmomanometer for examination, he went to the intern with the sphygmomanometer. However, the intern's testimony said, "I checked this time only, and never entered this ward again." Due to dissatisfaction with the hospital's conclusion, the relatives of the deceased asked the Jingning County Health Bureau to conduct an identification.After investigation, the Jingning County Health Bureau made a "decision and report on the handling of Comrade Zhang Yonglai's medical responsibility".After detailing the process of the patient's visit to the doctor and the night of his death, the article said: As the doctor on duty, Zhang Yonglai did not observe the patient closely and meticulously, did not consult the superior doctor, did not take other examination and diagnostic measures, and had insufficient understanding of the condition.Although Zhang Yonglai conducted an examination during the consultation and actively organized rescue after his condition turned critical, Zhang Yonglai was responsible for the death of the patient due to ineffectiveness. The County Health Bureau discussed and decided at the executive meeting on December 18, 1995: Zhang Yonglai wrote an in-depth inspection and reviewed it at the staff meeting, and apologized to the relatives of the deceased. The relatives of the deceased believed that the Jingning County Health Bureau’s investigation report revealed the false testimony of the negligent doctor in collusion with witnesses, but it covered up the dereliction of duty doctor on the key issue of whether or not he had a first visit. In this case, the relatives of the deceased brought a lawsuit to the People's Court of Jingning County according to relevant procedures.The court declined to file the case.The relatives of the deceased asked the Pingliang District Health Department for identification. According to the relatives of the deceased: After a year and a half of dodging by the Pingliang District Health Department, Li Fusheng and his party, who were sent to Jingning to investigate, were among the leaders of the units under investigation (Jingning County Hospital, Jingning Health Bureau) and the deputy head of the county in charge of health. Accompanied, after eating and drinking, we quickly issued a notice of "not a medical malpractice" to our victim.And there is no mention of it on the notice and no explanation of the reason. In this case, the relatives of the deceased pinned their hopes on the Gansu Provincial Health Department. On October 29, 1997, after the relatives of the victim had completed the procedures for re-investigation and appraisal at the Provincial Health Department, they asked the comrades in charge of medical malpractice appraisal in the Medical Affairs Office that the personnel from the Health Department should not go to the grass-roots level to conduct investigations on any of the parties under investigation. One party eats and drinks.The comrade replied: Needless to say, this is our investigation discipline, and it is the first discipline that must be taught to investigators. Relatives of the deceased said: "However, Lei Moumou, Xu Moumou, and the driver who were sent by the Health Department to investigate arrived in Jingning County Hospital on the afternoon of December 23, 1997. Accompanied by the three leaders and Zhang Weizhi, deputy director of the Jingning County Health Bureau, they ate and drank at the dinner table. We took photos.” Next, the Jingning County Public Security Bureau summoned the photographer several times.In this extremely embarrassing situation, the investigators got into the car and returned to Lanzhou overnight. Zhang Weizhi, the deputy director of the Jingning County Health Bureau in charge of business, put forward a different view: "I personally feel that it is normal to have a meal casually, and the courtesy is reciprocated. The two comrades from the province worked as soon as they came, and held seminars until evening. It was after 8 o'clock, and people were not allowed to buy food outside. Just after we ate, someone took a photo of us with a camera and said a lot of nasty words. I was worried that my comrades in the province would be beaten, so I called the security department of the county hospital. The comrades who saved during this period had to pay for their meals, so each of us paid for our own meals.” In March 1998, Gansu Provincial Medical Malpractice Appraisal Committee made a conclusion on this medical dispute: "Ma Yanling's case does not constitute a medical malpractice." Relatives of the deceased refused to accept this and continued to complain everywhere.They questioned the conclusions of the Accident Appraisal Committee of the Gansu Provincial Health Department: First, Lei and Xu, who were sent by the Provincial Health Department to investigate on December 23, 1997, encountered embarrassment at the dining table and escaped. No one was sent down to investigate, so who did the investigation?How to obtain evidence?Second, what the victim pursued was the responsibility accident of the doctor on duty, but the Appraisal Committee of the Health Department transferred the responsibility accident caused by the doctor's malfeasance to the technical accident clause.The doctor on duty did not come to the hospital bed within 7 hours after the emergency patient was admitted to the hospital. However, the Health Department quoted Article 8 of the "Gansu Province Medical Accident Handling Measures" in the appraisal conclusion, "Medical personnel shall implement the procedure according to the technical operating procedures and the correct diagnosis and treatment plan. There are still unforeseen and preventable accidents in the diagnosis and treatment work" to characterize.As a provincial-level national medical administrative organization, "I didn't expect to answer irresponsible questions like this, and randomly extract articles irresponsibly." By the time the article appeared in the newspaper, the relatives of the deceased were still running around and complaining. If the traffic policeman accepts the meal invitation from the driver who caused the accident, it must be a violation of discipline; if the technical supervisor accepts the meal invitation from the inspected company, it must also violate the regulations.However, as a staff member of the health department, it is human nature for the grassroots health department to receive and arrange a meal.The problem is that the staff of the Health Department are also the ones who appraise medical disputes, and the objects being appraised are precisely the grassroots health departments. Such an entangled relationship makes an ordinary meal more delicate.Therefore, we say that what is embarrassing is not the few staff members, but this system of identifying one's own family members.