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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。

 

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.