On Presumption Of Fault Liability Against Tampering And Forging Medical Records

Medical record shall be objective and true reflection of the patients condition.The quality of medical records is also directly reflects the quality of medical care,academic level and management level of medical institutions.While a medical dispute was sent to the court,medical records will be an important evidence for the determination of liability.Therefore,Article 58 of Tort Law of the people's republic of China provides that "under any of the following circumstances,a medical institution shall be at fault constructively for any harm caused to a patient...(3)forging,tampering or destroying any medical history record".However,lots of the disputes have been raised on the understanding the true meaning of this clause ever since it been implementation six years ago,that whether it is the statutory circumstances when identifying fault or it is the factual basis of fault presumption,or,whether medical institutions are able to defend themselves against this clause.It has to be pointed out that most of the existing judgments regarding this clause are of immaturity,and the basis and standards of "forgoing,tampering or destroying any medical history data" still remain unclarified.Therefore,it is necessary to further discuss and analysis the relevant standards and legal consequences in order to make these issues clear.We set forth in this article our opinion in following three parts:Part 1 introduces the trial and debate situations in some cases about forging or tampering medical record.What can be concluded through studying these cases is that patients can rarely recognize the courts decision even though such decisions is supported by forensic reports,as courts are usually assertive when responding the forging or tampering matters.Meanwhile,this part also introduces the definition of the Doctrine of Presumption of Fault.It is concluded in this part through analyzing the three terms included in Article 58 that 1.the word “presume” used in Article 58 actually means “regard as”,and;2.Term 3 of Article 58 includes the presumption of causality as well as the presumption of fault.Part 2 discusses applying foresaid "forging" and "tampering" terms in juridical practice.Firstly,it briefly illustrates the management standards and specific obligations of medical institutions about medical records.In the second,this part discusses the understanding and application issues of the term “forge” and “tamper',as well as how to deal with medical records when whether they are true or false is not clear.At the same time,as medical records are becoming electronized,relevant laws and regulations are lagging behind which causes the growing number of disputes regarding electronic medical records.We especially presented our opinion of limiting use of identification of electrical medical records which is commonly put forward as part of litigation strategy in practice under existing legal framework.Part 3 looks into some detailed issues in applying foresaid "forging" and "tampering" terms.Theoretically,the patient has to evidence the causality,fault and consequence of medical infringement when using Article 58 to file a claim.However,in fact,the patient still has to prove the conditions listed in the text of Article 58.In practice,both of the foresaid proofs has to be realized via forensic medical appraisal,which is then the most disputable part in the debate between plaintiff and defendant.Therefore,we provide analysis from a practice perspective regarding forensic medical appraisal on medical damage in Shanghai nowadays.