The Ministry of Justice issues guidelines for forensic appraisal of medical damage!

In order to standardize the construction of national judicial administration informatization and strengthen the guidance of national judicial administration work, the Ministry of Justice has formulated 19 industry standards including the "Guidelines for Standardization of Judicial Expertise" and revised 16 industry standards including "Forensic Clinical Examination Standards
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" The above 35 standards are now released and will be implemented on November 17, 2021
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This includes the "Guidelines for Forensic Appraisal of Medical Injury
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" The "Guidelines for the Judicial Appraisal of Medical Damages" clarify that medical institutions and their medical staff violate the laws, administrative regulations, rules and specific provisions of the corresponding diagnosis, treatment, and nursing standards during the diagnosis and treatment process, or violate the principles and methods recognized by most experts in the professional field.
It is regarded as a medical fault
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At the same time, the medical institution and its medical staff should make necessary notifications of the patient's condition and the diagnosis and treatment measures to be taken during the diagnosis and treatment process, and obtain the patient's knowledge and consent to the diagnosis and treatment measures
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Failure to fulfill the obligation of notification is deemed to be a medical fault
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The medical staff’s notification includes both written instructions and sometimes other appropriate forms of notification
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During the actual appraisal, the appraiser should make a prudent judgment and pay attention to the actual damage to the patient caused by the medical staff not fulfilling the obligation of notification
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The notified situation includes but is not limited to the following: (1) The diagnosis of the disease, including what the doctor knows and should know; (2) The purpose, methods, benefits and risks of the proposed diagnosis and treatment measures, as well as the risks and benefits of rejecting the measures (3) In addition to the diagnosis and treatment measures to be taken, other alternative measures are available; (4) Diagnosis and treatment measures that may cause obvious invasive injury to the patient or require the patient to bear more intense pain; (5) Expensive inspections, Drugs and medical devices; (6) Matters concerning transfer; (7) Other situations where it is necessary to obtain the patient’s knowledge and consent in accordance with relevant regulations
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Attachment: Guidelines for Forensic Appraisal of Medical Injuries 1.
Scope This document provides guidance on the entrustment, appraisal process, procedures for hearing the opinions of doctors and patients, and basic methods of appraisal involved in the practice of forensic appraisal of medical damage liability disputes.

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This document is applicable to the judicial appraisal of medical damage, and other similar appraisals shall be implemented by reference
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This document does not apply to the identification of disability levels caused by personal injury related to medical injury, labor ability identification, and other forensic compensation identification (including identification of rest period, nutrition period, and nursing period required for personal injury, and the degree of care dependence after determination of disability Identification and follow-up diagnosis and treatment items, etc.
)
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2.
Normative references The contents of the following documents constitute indispensable clauses of this document through normative references in the text
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Among them, for dated reference documents, only the version corresponding to that date is applicable to this document; for undated reference documents, the latest version (including all amendments) is applicable to this document
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GA/T 147 General Principles of Forensic Autopsy Techniques SF/T 0111 Forensic Clinical Examination Specifications SF/T 0112 Forensic Clinical Imaging Examination Code of Practice 3.
Terms and Definitions The following terms and definitions apply to this document
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Medical malpractice The fact that the medical institution and its medical staff have caused the patient's disadvantage due to fault in the diagnosis and treatment process
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Medical tangle: Disputes between patients and medical institutions and their medical staff due to diagnosis and treatment activities
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Medical fault The medical institution and its medical staff perform medical behaviors that violate laws, administrative regulations, rules, and other relevant diagnosis and treatment and nursing regulations, or fail to fulfill the medical treatment obligations corresponding to the current medical level
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Consequences of damage: Unexpected death, disability, damage to tissues and organs causing dysfunction, aggravation of the disease, or prolongation of the disease, and other related damages that are related to medical behaviors.

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Causation Causation The form of connection between medical fault (3.
3) and damage consequence (3.
4)
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Note: Divided into factual causality and legal causality
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The forensic appraisal of medical damage mainly focuses on factual causality
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Causative potency The magnitude of the role of medical fault (3.
3) when there may be multiple reasons at the same time that lead to the patient's injury consequences (3.
4)
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4.
The entrustment of the judicial identification of medical damage The client The judicial identification of medical damage is generally entrusted by the people's court with jurisdiction
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When necessary, agencies and organizations with powers of procuratorial, supervision and supervision should be the principals
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The appraisal that needs to be implemented for the administrative handling or mediation or arbitration of medical disputes based on this document should be entrusted by the institution or unit with the corresponding disposal power, or by the parties involved in the medical dispute (that is, the patient and the corresponding medical institution).

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Entrusted appraisal matters The judicial appraisal of medical damage generally includes the following entrusted matters: a) Whether the medical institution is at fault in the conduct of diagnosis and treatment; b) Whether there is a causal relationship between the medical fault and the damage consequence and the magnitude of the cause; c) Whether the medical institution has done enough Explain the obligation and obtain the written consent of the patient or the patient's close relatives; d) Other related special issues
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When the client proposes the entrusted appraisal according to his needs, the judicial appraisal agency should negotiate with the client and reach an agreement on the entrusted matter
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5.
Appraisal process.
Appraisal material pre-examination.
After the client submits a medical damage judicial appraisal, he shall provide appraisal materials to the forensic appraisal agency for review by the appraiser.
The forensic appraisal agency will give a reply within the prescribed time whether it meets the acceptance conditions and whether the agency has appraisal capabilities
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If the appraisal materials cannot meet the audit requirements, the appraisal agency should promptly provide supplementary requirements
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According to the stage of the case, the provided identification materials generally include, but are not limited to: identification application, written statements from the doctors and patients, medical records and medical imaging materials, civil complaints and civil defenses
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The pre-review of medical imaging data refers to the regulations on external information review in SF/T 0112
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Hearing the opinions of all the doctors and patients.
If the appraisal materials plan to accept the appraisal after the pre-examination of the appraisal materials, the judicial appraisal agency should determine the appraiser and notify the client, and jointly negotiate and organize to hear the opinions of the parties (representatives) of the doctors and patients
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If the parties or one of the parties refuse to be present, it shall be deemed to have given up the right to make a statement; after consultation with the client, the appraiser shall continue the appraisal if the client considers it necessary
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Acceptance and inspection of appraisal Once the appraisal materials are confirmed and meet the acceptance conditions, the judicial appraisal agency and the client shall sign the acceptance confirmation procedures
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After accepting the appraisal, the appraiser should perform the necessary examinations (including autopsy, histopathological examination, biopsy and other necessary auxiliary examinations) on the appraised person (patient) in accordance with the provisions of SF/T 0111 or GA/T 147
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Consultation of expert opinions The appraiser consults relevant medical experts on the specialized issues involved in the appraisal
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Expert opinions should be archived internally and provided for the reference of the appraiser, but not as part of the appraisal opinion or its attachment
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Preparation of the appraisal opinion letter The appraiser shall complete the production of the appraisal opinion letter based on the medical science principles, clinical diagnosis and treatment norms and appraisal principles based on the identification materials provided by the doctors and patients, the opinions expressed by the doctors and patients, and the expert opinions, and shall be responsible for the appraisal opinions
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6.
Procedures for listening to the opinions of doctors and patients.
The basic form is generally in the form of on-site meetings to listen to the opinions of doctors and patients, or after consultation with the client, remote video conferences and teleconferences can also be used.

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Participants: Participants’ suggestions are as follows: a) Participants generally include appraisers (including appraisal assistants and recorders if necessary), clients or their representatives, patients (including the patient himself and/or his family members, patients’ agents, and experts) Auxiliary and other relevant personnel), medical staff (including the medical staff involved and/or representatives of the medical institution where they are located, medical agents, expert assistants and other relevant personnel); b) The number of medical staff and patients involved is not appropriate More than five people; c) If necessary, interested parties (such as the counterparty or their agents who caused the patient’s personal injury, and the personnel of the insurance company related to the compensation) can also participate in the statement; d) If necessary, it should be invited The (clinical) medical experts who provide consulting opinions participate in listening to the statements of the doctors and patients
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Hearing of opinions 6.
3.
1 Overview If the client or his representative attends the meeting, the client or his representative generally first introduces the staff of the doctors and patients, announces the entrusted appraisal items (appraisal content), and introduces the entrusted judicial appraisal institution
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It is advisable for an appraiser appointed by a judicial appraisal agency to preside over the doctor-patient opinion statement
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The appraiser should explain the following matters: a) Announce and introduce the appraiser, explain the regulations on appraisal withdrawal, and ask whether the appraisal request has been filed and the reasons; b) Forensic appraisal adopts the appraiser responsibility system, and relevant medical experts will be hired to provide it as needed during the appraisal process Consultation opinions, but their opinions are only for the reference of the appraiser, and the appraiser is responsible for the appraisal; c) The start date of appraisal and the period of appraisal are generally counted from the day when the "Forensic Appraisal Entrustment (Confirmation) Letter" is formally signed and the appraisal materials are provided.
If there is an agreement, follow the agreement; d) Before the end of the appraisal, the doctors and patients should not contact the appraiser privately without permission; if supplementary materials are really needed, they should be submitted to the client, reviewed and cross-examined by the client, and then transferred to the appraiser
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6.
3.
2 Statements of doctors and patients' opinions The doctors and patients shall make statements separately, and each statement should be within 20 minutes
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It is usually carried out in the order of the patient first and then the doctor
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After the two parties have completed their statements, they can add additional statements
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The appraiser should state the following statement requirements during the presiding process: a) The doctors and patients should state their views and opinions within the specified time, and the statement should focus as much as possible on the diagnosis and treatment process involved in the entrusted appraisal, the consequences of damage and the causal relationship, etc.
Questions; b) The doctors and patients should not arbitrarily interrupt the other party’s statements, and cannot insult, slander or threaten the other party, the client and the evaluator; c) After the doctors and patients have made the statement, the evaluator can learn more about the situation involved in the appraisal D) All doctors and patients can submit written statements to the appraiser.
The written statements can include clinical medical guidelines, industry expert consensus or medical literature, etc.
; e) Confirmation When necessary, the statements of both the doctor and the patient shall be carried out separately
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6.
3.
3 The meeting record appraisal agency abstracts the statements and opinions of the doctors and patients.
If the statements are made on the spot, the attendees of the doctors and patients will sign and confirm on the meeting minutes; if the form of remote video or telephone conference is adopted, audio and video recording should be adopted.
And other forms of record
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Meeting records are work records of appraisal activities and should be archived and kept, but generally they are not directly used as appraisal basis
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Disposal of disputes in authentication materials 6.
4.
1 Audit and responsibilities The recommendations on audit and responsibilities are as follows: a) The principal is responsible for the authenticity, completeness and adequacy of the authentication materials; b) Whether the authenticator is applicable to the authentication materials and whether they can satisfy the authentication Necessary audits are required; c) If the medical and patient parties raise objections to the appraisal materials, the appraiser shall deal with it in accordance with the provisions of 6.
4.
2 or 6.
4.
3 according to the audit results.

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6.
4.
2 Determine whether the appraisal can be carried out as appropriate.
Under the following circumstances, determine whether to carry out appraisal: a) The objection raised by the party does not affect the appraisal execution, and the appraiser should continue to carry out the appraisal after obtaining the consent of the client; b) Objection raised by the party It can be clarified by the relevant content or other materials in the appraisal materials, and the appraiser will determine whether to continue the appraisal after consultation with the client; c) The appraiser’s objection to the party concerned, after a comprehensive assessment of the appraisal materials, it is considered that whether the objection is established or not may be If it has a substantial impact on the appraisal opinion, it is advisable to fully negotiate with the client and determine whether to continue the appraisal as appropriate
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6.
4.
3 Suspension or termination of appraisal The objection raised by the parties may have a substantial impact on the appraisal opinion.
If the appraiser cannot resolve the objection after consultation with the client, it is advisable to suspend or terminate the appraisal
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If the objection is resolved after the supplementary materials, the appraisal will be restarted
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6.
4.
4 Appraisal involving special inspection materials The identification recommendations involving special inspection materials are as follows: a) If the appraiser believes that special inspection materials such as pathological tissue sections, wax blocks, tissue blocks or corpses are required, the client and the doctors and patients shall be actively involved.
Cooperate, and submit it to the appraisal agency after confirmation; the appraisal agency shall not be held responsible if the materials are lost or damaged during the submission process
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b) After the special inspection materials are delivered to the appraisal institution, the appraiser shall confirm the type, quantity and storage status in time
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If the special inspection materials have been lost or damaged, inform the client and keep relevant records; c) During the appraisal process, the appraisal institution shall properly keep and use the special inspection materials
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7.
The basic method of identification medical fault 7.
1.
1 The medical institution and its medical staff who violate the specific regulations violate the laws, administrative regulations, rules and the specific provisions of the corresponding diagnosis and treatment and nursing standards during the diagnosis and treatment, or violate the majority of the professional field The principles and methods recognized by experts are deemed to be medical fault
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Note: Regulations, principles and methods include both written and "conventional"
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7.
1.
2 The fault of violating the duty of care is measured by the cognitive ability and operational level of most medical staff in the corresponding professional field at the time of the medical dispute.
Medical institutions and their medical staff have the responsibility and ability to pay attention to possible damages, but due to negligence Or overconfidence and failure to pay attention, it is deemed that there is medical fault
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When determining, pay due attention to the principles of rationality, time limit and regionality
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7.
1.
3 Faults in violation of the obligation of notification Medical institutions and their medical staff should make necessary notifications of the patient's condition and the diagnosis and treatment measures to be taken during the diagnosis and treatment process, and obtain the patient's knowledge and consent to the diagnosis and treatment measures
.
Failure to fulfill the obligation of notification is deemed to be a medical fault
.
The notified situation includes but is not limited to the following: a) The diagnosis of the disease, including what the doctor knows and should know; b) The purpose, method, benefits and risks of the proposed diagnosis and treatment measures, as well as the risks and benefits of rejecting the measures; c ) In addition to the diagnosis and treatment measures to be taken, other alternative measures are available; d) Diagnosis and treatment measures that may cause obvious invasive injury to the patient or require the patient to bear more intense pain; e) Expensive examinations, drugs and medical equipment; f) Matters concerning transfer; g) Other situations where it is necessary to obtain the patient’s knowledge and consent in accordance with relevant regulations
.
The medical staff’s notification includes both written instructions and sometimes other appropriate forms of notification
.
During the actual appraisal, the appraiser should make a prudent judgment and pay attention to the actual damage to the patient caused by the medical staff not fulfilling the obligation of notification
.
Consequences of damage 7.
2.
1 Death Death is the most serious consequence of damage, which refers to the end of life of the appraised person (patient) as a natural person
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If an autopsy is required to clarify the cause of death, it shall be implemented in accordance with the provisions of GA/T 147
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7.
2.
2 Disability Disability is a more serious consequence of damage.
It refers to the damage of the patient’s limbs, organs and tissue structure or the inability to perform normal physiological functions.
Work, study, social adaptation, and daily life are affected as a result, and sometimes appropriate assistance from others is required.
, There are even medical dependence, nursing dependence and nutritional dependence
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If it is necessary to determine the degree of disability, a biopsy should be carried out in accordance with the provisions of SF/T 0111 and SF/T 0112
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7.
2.
3 Prolonged course of disease Prolonged course of disease means that the course of a patient's disease or the clinical course of the diagnosis and treatment of the disease is longer than usual
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7.
2.
4 Aggravated illness or other damage Aggravated illness or other damage refers to a patient’s limbs, organs, and tissues that are partially damaged, for example, there is no improvement or aggravation before diagnosis and treatment, but they can still perform basic normal physiology.
Function, able to engage in work and study normally, social adaptation and daily life are not obviously restricted, and it is not yet a disability
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7.
2.
5 The meaning of wrong conception, wrong birth, wrong life wrong conception, wrong birth and wrong life are as follows: a) wrong conception refers to the accidental conception of a woman due to medical advice or improper use of contraceptive measures; b) wrong birth is also called wrong Childbirth refers to the parents of the newborn.
Although the pregnant woman undergoes prenatal examinations during pregnancy, the fetus with defects in delivery has not been avoided; c) Wrong life (also called "wrong birth"), is the newborn's claim that the mother was during pregnancy Although the prenatal examination did not find any abnormalities or did not make the necessary prompts, it caused him to be born with defects
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The essence of the above-mentioned damage consequences is the loss of the opportunity to reproduce (birth), not the reproductive (birth) itself
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7.
2.
6 Loss of chance of survival Compared to the consequences of death, loss of chance of survival is intermediate damage (or "process damage"), not the final consequence of damage
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Loss of chance of survival refers to the fact that the patient's own disease has a greater possibility of death in a short period of time, or the disease is serious and the expected survival period is limited, but death has not been avoided or the survival period has been shortened due to medical damage
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7.
2.
7 Loss of opportunities for rehabilitation Compared with the consequences of disability, the loss of opportunities for rehabilitation is intermediate damage (or "process damage"), not the final damage consequence
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Loss of recovery opportunities means that the patient's own disease has a greater possibility of causing disability or dysfunction, but the occurrence of medical damage that causes the disability or dysfunction cannot be effectively avoided
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Causality and causal power 7.
3.
1 There is no causal relationship between medical behaviors and the patient’s damage consequences.
Adverse consequences are almost entirely caused by the characteristics of the patient’s condition, his own health, the particularity of his physique, or the limitation of the medical level at the time.
There is no essential connection with medical behavior
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7.
3.
2 There is a certain causal relationship between the medical behavior and the patient’s damage consequences.
The fault is a minor cause.
The damage consequence is essentially due to the characteristics of the patient’s condition, its own health status, the particularity of the physique, or the limitation of the medical level at the time.
Caused by other factors, the medical fault behavior only played a certain inducing or slight promotion and aggravation in the occurrence or progress of the damage consequences.
Even if there is no medical fault, the damage consequences are usually still unavoidable
.
7.
3.
3 There is a certain causal relationship between the medical behavior and the patient’s damage consequences.
The fault is a secondary cause.
The damage consequences are mainly caused by the characteristics of the patient’s condition, his own health, the particularity of the physique, or the limitation of the medical level at the time.
, The medical fault behavior only played a role in promoting or aggravating the occurrence or progress of the damage consequences.
Even if there is no medical fault, the damage consequences are still likely to occur.

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7.
3.
4 There is a certain causal relationship between the medical behavior and the patient’s damage consequences.
The fault is the same reason, the damage consequence and the medical fault behavior, as well as the characteristics of the patient’s condition, his own health, the particularity of the physical fitness, or the limitation of the medical level at the time.
They are all closely related.
If there is no medical fault, or if there is no patient's own factors (and/or limited to the current medical level and other factors), the damage will usually not happen
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Medical fault and the patient's own factors play basically the same role in the formation of damage consequences, and it is difficult to distinguish the priority
.
7.
3.
5 There is a causal relationship between medical behavior and the patient’s damage consequences.
Fault is the main reason.
Medical fault behavior is the main reason for the patient’s damage.
Factors such as level only play a secondary role, and if there is no medical fault, the consequences of harm will generally not occur
.
7.
3.
6 There is a causal relationship between the medical behavior and the patient's damage consequences, and the fault is the whole cause.
The medical fault behavior is the direct cause of the patient's damage consequences.
If there is no medical fault, the damage consequence will inevitably not occur
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