A Case Study On Dispute Of Xu Mou V.a Hospital For Medical Damage Liability

Medical disputes are the most common type of medical disputes in civil tort disputes and the most common type of civil tort disputes.The medical damage liability dispute between Xu Mou and a hospital is a dispute caused by Xu Mou who suffers from nasopharyngeal cancer who has received unauthorized cellular immunotherapy technology in a hospital and died in his own home after discharge.His close relatives Xu Mou believe that the hospital should bear medical tort liability.The core controversial focus of the case includes whether patients can claim compensation according to the Consumer Rights and Interests Protection Law of the People's Republic of China,whether unauthorized use of cellular immunotherapy is a presumed medical fault,and whether autopsy is a medical fault.As to whether patients can claim compensation according to the Consumer Rights Protection Law of the People's Republic of China,medical institutions are not operators,patients are not consumers,doctor-patient relationship is not equal to consumption relationship,and disputes over liability for medical technology damage can not be applied to the Consumer Rights Protection Law of the People's Republic of China,but the nature of liability for damage to medical products is product liability,so the law can be applied.In this case,the hospital is a public non-profit organization,not an operator.The nature of this case is a dispute of liability for medical technology damage.So Xu Mou can not claim for compensation according to the Consumer Rights and Interests Protection Law of the People's Republic of China.Whether the unauthorized use of cellular immunotherapy is a presumed medical fault mainly involves the application of Article 58 of the Tort Liability Law of the People's Republic of China,which can also be divided into two aspects.One is whether the presumption of fault stipulated in this law can be overturned,which can be divided into two different points of view: one can be overturned and the other can not be overturned.In this case,the use of cellular immunotherapy by a hospital without approval belongs to the presumption of fault stipulated in this law,and is compulsory presumption,which is not allowed to be overturned by medical institutions.The second is whether the presumption of causation includes the presumption of causation,which can be divided into two different points of view: the presumption of causation and the presumption of non-causation.There is no causation between the fault and the consequence of damage in this article.The presumption of Article 58 does not contain the presumption of causation.The burden of proof of causation is still borne by the patient.Regarding whether the medicalinstitution did not inform the relevant causes of autopsy constitutes a medical fault or not,the patient died after receiving medical treatment.In case of objection to the cause of death,autopsy should be carried out.The provisions of the law of our country for autopsy are simple.It is suggested that the specific provisions of the autopsy should be added.In the case,the hospital failed to fulfill its duty of autopsy notification,it shall be responsible for the failure to determine the cause of Xu's death,but did not constitute a medical fault.