医疗损害责任
患者在诊疗活动中受到损害,医疗机构及其医务人员有过错的,由医疗机构承担赔偿责任。
医务人员在诊疗活动中应当向患者说明病情和医疗措施。需要实施手术、特殊检查、特殊治疗的,医务人员应当及时向患者说明医疗风险、替代医疗方案等情况,并取得其书面同意;不宜向患者说明的,应当向患者的近亲属说明,并取得其书面同意。
医务人员未尽到前款义务,造成患者损害的,医疗机构应当承担赔偿责任。
因抢救生命垂危的患者等紧急情况,不能取得患者或者其近亲属意见的,经医疗机构负责人或者授权的负责人批准,可以立即实施相应的医疗措施。
医务人员在诊疗活动中未尽到与当时的医疗水平相应的诊疗义务,造成患者损害的,医疗机构应当承担赔偿责任。
患者有损害,因下列情形之一的,推定医疗机构有过错:
(一)违反法律、行政法规、规章以及其他有关诊疗规范的规定;
(二)隐匿或者拒绝提供与纠纷有关的病历资料;
(三)伪造、篡改或者销毁病历资料。
因药品、消毒药剂、医疗器械的缺陷,或者输入不合格的血液造成患者损害的,患者可以向生产者或者血液提供机构请求赔偿,也可以向医疗机构请求赔偿。患者向医疗机构请求赔偿的,医疗机构赔偿后,有权向负有责任的生产者或者血液提供机构追偿。
患者有损害,因下列情形之一的,医疗机构不承担赔偿责任:
(一)患者或者其近亲属不配合医疗机构进行符合诊疗规范的诊疗;
(二)医务人员在抢救生命垂危的患者等紧急情况下已经尽到合理诊疗义务;
(三)限于当时的医疗水平难以诊疗。
前款第一项情形中,医疗机构及其医务人员也有过错的,应当承担相应的赔偿责任。
医疗机构及其医务人员应当按照规定填写并妥善保管住院志、医嘱单、检验报告、手术及麻醉记录、病理资料、护理记录、医疗费用等病历资料。
患者要求查阅、复制前款规定的病历资料的,医疗机构应当提供。
医疗机构及其医务人员应当对患者的隐私保密。泄露患者隐私或者未经患者同意公开其病历资料,造成患者损害的,应当承担侵权责任。
医疗机构及其医务人员不得违反诊疗规范实施不必要的检查。
医疗机构及其医务人员的合法权益受法律保护。干扰医疗秩序,妨害医务人员工作、生活的,应当依法承担法律责任。 |
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LIABILITY FOR
MEDICAL INJURIES
Where a
patient is
injured in the
activities of
medical
diagnosis and
treatment and
the medical
institute and
the staff
members thereof
are at fault,
the medical
institute shall
bear the
responsibility
for
compensation.
The medical
workers in the
activities of
medical
diagnosis and
treatment shall
illuminate the
state of
illness,
measures of
medical
treatment to the
patient. Where
performing an
operation,
special
examination,
special
treatment is
needed, the
medical workers
shall timely
illuminate the
medical risks,
alternative
medical projects
etc. and get the
patient’s
consent in
writing; where
there is
inappropriate to
illuminate the
situations to
the patient, the
medical workers
shall illuminate
the situations
to the patient’s
close relatives
and get their
consent in
writing.
Where any
medical worker
fails to assume
the said
obligations and
causes injuries
to the patient,
the medical
institute shall
bear the
responsibility
for
compensation.
Where due to
the urgent
situations such
as rescuing the
life of the
patient who is
dying, the
opinions of the
patient or his
close relatives
is not able to
be gotten,
through the
approval of the
responsible
person of the
medical
institute or the
authorized
responsible
person the
corresponding
medical measures
may be performed
immediately.
Where in the
activities of
medical
diagnosis and
treatment the
medical workers
haven’t done
their duty of
diagnosis and
treatment in
accord with the
medical level at
that time and
causes injuries
to the patient,
the medical
institute shall
bear the
responsibility
for
compensation.
Where a
patient is
injured due to
one of the
following
circumstances,
the medical
institute shall
be presumed at
fault:
(1)violating
law,
administrative
regulations,
rules and other
stipulations
regarding the
standards and
conventions of
diagnosis and
treatment;
(2)concealing
or refusing to
offer medical
records
materials
involved in the
dispute;
(3)fabricating,
altering or
destroying
medical records
materials.
Where a
patient is
injured owing to
the defects in
medicines,
sterilizing
medication,
medical
appliances or
being transfused
unqualified
blood, the
patient may
request
compensation
from the
manufacturer or
the blood
supplying
institute, may
also request
compensation
from the medical
institute. Where
the patient
request
compensation
from the medical
institute, after
performing the
compensation the
medical
institute shall
be entitled to
claim repayment
from the liable
manufacturer or
blood supplying
institute.
Where a
patient is
injured due to
one of the
following
circumstances,
the medical
institute shall
not bear the
responsibility
for
compensation:
(1)The patient
or his close
relatives don’t
cooperate with
the medical
institute on
carrying out the
medical
diagnosis or
treatment which
is in accord
with the
standards and
conventions of
the diagnosis
and treatment;
(2)The medical
workers have
done their
reasonable duty
of the diagnosis
and treatment
under the urgent
circumstances
such as rescuing
a dying patient.
(3)It’s hard
to diagnose or
treat the
disease with the
limit of the
medical level at
that time.
In the
circumstance
described in
sub-paragraph(1),
above paragraph,
where the
medical
institute and
its staff
members also are
at fault, the
corresponding
responsibility
for compensation
shall be borne.
A medical
institute and
its staff
members shall
pursuant to
rules record and
properly store
the medical
records
materials such
as in-hospital
records,
doctor’s advice,
testing reports,
medical
operations and
anaesthesia
records,
pathological
materials,
nursing records,
medical
expenses.
Where a
patient demands
to consult,
reproduce the
medical records
materials
stipulated in
the preceding
paragraph, the
medical
institute shall
offer.
A medical
institute and
its staff
members shall
treat patients’
privacy as
confidential.
Where they
release
patients’
privacy or
public their
medical records
materials
without the
patients’
permission and
cuase damages to
the patients,
the liability
for infringement
shall be borne.
A medical
institute and
its staff
members shall
not perform
unnecessary
examinations
with violating
the standards
and conventions
of the diagnosis
and treatment.
The legal
rights and
interests of a
medical
institute and
its staff
members are
protected by
laws. Where
anyone disrupts
medical orders,
obstructs the
working and
living of the
medical workers,
he shall bear
the legal
liability
according to
laws. |