Prevent it correctly " Misdiagnose " Misunderstanding with erroneous judgement

Prevent it correctly " Misdiagnose " Misunderstanding with erroneous judgement
Old �d
" misdiagnose " Have the common phenomenon clinically, but if assert without exception that there is fault in medical behavior on the basis of misdiagnosing, and then assert the medical organization should bear legal liability to the patient if misdiagnose, but a logic not in accordance with medical science and law based on that life image is made.
About details of the case
Because the hospital diagnoses the mistake is sentenced to compensate
Wei because the upper abdomen is often uncomfortable, went to one hospital of Beijing to seek medical advice last June, hospital check, diagnose their suffers from pancreas hair cancer, advise transferring from one hospital to another and going on treating. Wei observes for 8 days in hospital to the second hospital, diagnose as alcohol pancreatitis and false cyst of the pancreas, and not suffered from cancer. Wei thinks, the mistaken diagnosis of the first hospital lets oneself and family fall into the extreme agony, then bring a suit before court in this hospital, demand to return the medical fee and compensate for the spiritual financial loss of 50,000 yuan.
Defendant hospital think, it diagnoses to be to combine whom auxiliary examination result made and according to clinical manifestation, medical history previously of Wei, the medical behavior accords with and makes a diagnosis to operate the routine, the medical fault does not exist. The reason why diagnose the result is different from second hospital, it is a normal phenomenon in the medical work.
Court try, think defendant the intersection of explaination and opinion of hospital have effective evidence verify really, assert finally there is certain fault in the medical behavior of this hospital, should bear compensation responsibility. The court satisfies defendant's hospital of the judgement and returns medical fee of 6000 yuan to Wei, compensate for the spiritual financial loss of 10,000 yuan.
Citing case statement
The legal mechanism can only dispel and misdiagnose on a small quantity
The court can understand, it aims at restraining the medical behavior to the judgement motive of this case, reduce and misdiagnose the phenomenon, compensate the losses of patient incurred because of misdiagnosing in the hospital. But seen from existing legal mechanism, only under the prerequisite of misdiagnosing mistake in the hospital, can not draw the legal conclusion that the hospital should take on the responsibility.
First of all, medical mistaken diagnosis of category can only dispel by method of medical science, law can only make the judgement to mistaken diagnosis behavior to violate the legal provision.
People are the most complicated natural organisms, medical behaviors of the disease of any diagnosis will rely on medical science to progress constantly, in addition, the patient's individual difference, disease make a variation etc., it is not merely unavoidable to misdiagnose the phenomenon in the clinical activity, and no matter misdiagnose or make a definite diagnosis ofing all has uncertainty. If a case regards as and makes a definite diagnosis of at this moment, medical science may be considered to misdiagnose while developing in the future; First hospital was regarded as making a definite diagnosis of, may be thought to be and misdiagnosed by second hospital, may assert A B two hospitals misdiagnose by third hospital. The law is not a medical method, can not make the judgement to the medical question, can only accord with the laws and regulations and routine of making a diagnosis,etc. and make the judgement to the behavior of making a diagnosis.
Secondly, simple mistaken diagnosis is not that the law belongs to the basis of the responsibility. Medical science in diagnostics progresses, are all based on a large amount of mistaken diagnosis experiences. If the legal system is preserved and can't be misdiagnosed in the medical course, medical science will stagnate while progressing. Because diagnose the course is to verify the course is the falsfication course too, through pieces of exclusion that misdiagnoses, closer to the result that is made a definite diagnosis of, especially to complicated disease. In this sense, besides those a few irresponsible diagnosis, misdiagnose and is beneficial to patient more or less.
Recently, have system to require the hospital to share the inspection result, among them the logic reflected shows: If the diagnosis based on that the same inspection result is made is identical, patients needn't go to a doctor in different hospitals; If inconsistent on the basis of the diagnosis with a inspection result, must misdiagnose among them then, but different hospitals are essential to the patient on the basis of different diagnosis made of the same inspection result.
Therefore can have, the simple mistaken diagnosis result is not that the law belongs to the basis of the responsibility. Mistaken diagnosis is an inevitable medical phenomenon, the law can't be to even can't avoid to do one's duty very much the actor that misdiagnose belongs to the responsibility eithering, otherwise the system loses fairness.
Assert that misdiagnoses fault to make a concrete analysis of
Judge that misdiagnoses and has both medical fault and legal fault, need to carry on concrete analysis, can proceed with three respects in operation:
First, the course misdiagnosed accords with the norm of making a diagnosis. If accord with even obtain different diagnosis and include misdiagnosing, the hospital or doctor does not have legal fault, there may be fault.
Second, when the hospital or doctor take the special diagnostic method, if there is sufficient medical reason and obtain consent of patient, even misdiagnose, can't assert either it has fault. After all, it will realized in breaking the regular foundation that medical science progresses.
Third, judge whether there is legal fault to misdiagnose, should consider the diagnosis ability of the hospital or doctor, including due medical knowledge level, apparatus technological level and special medical experience,etc.. The hospital, under due diagnosis ability, even responsible diagnosis is still difficult to avoid misdiagnosing, can assert it does not have legal fault. Under the horizontal prerequisite of the due diagnosis of the hospital, because violate and make a diagnosis the medical reason not sufficient of the norm misdiagnoses, should assert the fault exists in the medical behavior.
Should be asserted the fault by the expert witness
In the judicial practice, judge and misdiagnose the behavior whether to have legal fault, should adopt the intersection of expert and the intersection of witness and system, key want, have violation or sufficient medical reason that make the professional judgement to the medical behavior misdiagnosed. Its form can be that expert's written testimony, expert testify or the medical appraisal organization provides and appraises etc.. The judge as the unprofessional person in the medical field, if misdiagnose the behavior and make the judgement to medical treatment by oneself, it is a method to lack public trust.
In fact, we regulate the function of the middle-jiao from contract system and law offering expert's service, can derive, it goes out of hospitals or doctors to be needn't whether mistaken diagnosis without fault in law take on the conclusion of the responsibility. If lawyers offered law service fully fulfilled obligations, can't win a lawsuit as the standard with agency's case. Especially first the intersection of lawyer and the intersection of case and first instance of agent lose a lawsuit, but second the intersection of lawyer and the same case of acting win a lawsuit in the second instance, so as to investigate first lawyer's responsibility of dealing with legal affairs fault. So in taking offering expert service as target contract, could voluntary to fulfil standard have two important judgement according to as expert in order to serve result.
Whether first, this kind of service result has a determinacy in advance on properties. If there is determinacy in advance, is it an apt judgement standard as fulfilling obligations to use and serve the result. On the contrary, can only use and serve the course and do one's duty as judging the standard.
Second, it accords with both sides' purpose to settle a bargain to fulfil the course of the contract, but not one party's motive of concluding a treaty. For serving the contract that the result can't confirm in advance, should require one party of experts to offer responsible speciality service, must take, meet demand, serve motive when one party settle a bargain. The medical contract is like this. Go to see doctor and get the effective treatment, it is the motive that every patient makes a contract with hospital, but diagnose the result does not have a determinacy in advance, the hospital only offers service of doing one's duty for the patient, even not met the motive that a patient expects to make a definite diagnosis of, it is a purpose to realize the medical contract. So hospital offer can't confirm medical care of result in advance, business under the situation judge mistake have exempt responsibility nature as to do one's duty already. What the law should be dispelled is an irresponsible mistaken diagnosis behavior, the behavioral result mistake under the situation that but not do one's duty.
The suggestion that I deal with this kind of case is, are damaged without further medical treatment, simple mistaken diagnosis unnecessary as to belong to the intersection of responsibility and cause hospital, court either should misdiagnose item, make, let hospital take on judgement of responsibility just only.
(Author's unit: Ins of law,Chi Acad of Social Sciences)
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