Of flaw of effectiveness of contract of medical services and medical services charge to pay

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Article number: 1005-2216(2008)09-0718-03
Of flaw of effectiveness of contract of medical services and medical services charge to pay
-- , accuse by a medical services with countercharge case place is caused originally
legislation thinks
Cheng Yuyan 1, chen Shupeng 2, song Ruliang 3
Keyword: Agitate tastes countercharge of; of  ? effectivenessKeywords:mEdicalservice;effect;counterclaim
The graph classifies date in: DMark of 9 　 document is piled up: CWriter unit: 1. Law of Guangdong administration institute is, guangdong Guangzhou 510053;2. Guangdong
Graduate student of Party school of provincial Party committee ministry, guangdong Guangzhou 510080;3. Office of attorney of Guangdong Nuo official, wide
East Guangzhou 510080
Newsletter writer: Mailbox of electron of firm Piao? : SRL6812@21cn.com
Brief introduction of 1 details of a case
Huang Mou, female, because of delaying abortion entered travel of hospital of armour of some urban district in June 2005
Clear palace art. Hind because of the massive haemorrhage in the operation, second of hospital of collaboration of technology of armour hospital superior
Expert of hospital department of gynaecology and obstetrics is present after consultation, the decision goes instantly uterine body resection.
After art that day, huang Mou turns to second hospital to make further services. During, huang Mou is in armour
Hospital happening medical services expends more than yuan 11000, already paid 500 yuan, more than outstanding. In
Second hospital produces medical services to expend more than yuan 11500, already paid 2000 yuan, the others 9 1000
Yu Yuan by armour hospital for you pay for sb and expect to be repaid later. The generation in the operation uses hematic coadjutant gold 600 beyond
Yuan, yi Youjia hospital for you to pay for sb and expect to be repaid later of center of this city blood. Afore-mentioned medical services are expended beyond
Paragraph and the medical services fee that hospital generation pays armour, help each other with blood gold is aggregate more than yuan 20000,
Huang Mou was not returned to armour hospital up to now still.
Because convection produces a result to produce controversy to talk things over,do not have if really, in December 2005 20
Day, court of this urban district accepted Huang Mou to accuse person of armour hospital unskillful and faulty medical or surgical services damages compensate
Countervail case, formed this appealing to (accuser is Huang Mou, the accused is armour hospital) .
During the quote of this case first instance, hospital of the accused armour defaults cure in the light of Huang Mou
Cure cost issue also put forward countercharge to Huang Mou, the court had put on record lawfully, form
Into countercharge case (the accused of the countercharge in countercharge case is Huang Mou, countercharge accuser is armour cure
Courtyard) . Hospital of countercharge accuser armour puts forward as follows to request: Laborious of date of Na midge ㄔ is yttric tiny stream
Expenses of Fu Qianshu medical services totals more than yuan 20000, pay exceed the time limit to pay accrual, assume
This case legal cost.
The court will accuse with countercharge the case incorporates originally undertook cognizance.
In this appealing to that the case tries a process, armour hospital offers object lesson of technology of unskillful and faulty medical or surgical services
Decide application. Classics court is entrusted, this city medicine can be made in April 2006 " this
Cure case does not make unskillful and faulty medical or surgical services " technical appraisement conclusion, think: (1) patient because
Delay abortion executes cure of clear palace art in armour hospital, in medical services process, cure square
Medical services behavior is blameless, diagnosing is correct, processing measure accords with medical services basically former
Criterion. This treats art of choice clear palace method, and later because of massive haemorrhage, happen break
The rescue that wait treats shock of courage and uprightness, DIC plan is reach accord with diagnosis and services nurse groovy.

(2) delays the vagina of be caused by of art of abortive travel clear palace bleeds, belong to an operation
Complication. The hospital adopts convention to the patient hemostatic, shrink collect when palace and rescue measure
Take platelet of sudden fluid infusion, blood transfusion, blood transfusion, give fibrinogen, plasma to reach strong
Force shrinks palace agent all disable, excise an uterus, have point to clearly proof, it is effective stop
Blood reachs the drastic step that saves patient life. The patient‘s hysterectomy is to delay flow
Produce a clear palace art intercurrent massive haemorrhage, haemorrhage is more than and adopted urgent cure step,
Do not have with medical services behavior causal. But this appraisal conclusion points out at the same time: (1) armour
The hospital is an omnibus medical establishment, but have not deal with " technology of Mu Ying health care
Service hold licence of course of study " , disobey " hygiene of baby of mother of People‘s Republic of China "
Classics of 31 regulations; orders a physician " technology of mother baby health care serves hold license of course of study
Card " certificate of the ground that fasten different, did not deal with hold industry spot changes procedures. (2) hospital is in this
Presence is scant among process of second medical services: Lang of buccal Da of lane of to shirk evil spirit holds Da of   slender and delicate
Hind although inform its to should go to this to visit go to a doctor of courtyard of health care of women and children, but this courtyard is returned in the patient
Still agree to accept its to make clear palace treat when, the risk that aborts to delaying estimates not
Sufficient; Qing Dynasty prepares to owe before palace art sufficient, if should have the; adversary technique such as blood may go
Showing complication and its harm sex and patient are communicated insufficient, patient know the inside story is inadequate.
In the cognizance of countercharge case, be aimed at the view of countercharge accuser, countercharge the accused
Argue of Huang Mou criterion says: Make an appointment with Zi all Han of station of neon of male of travel of brown of  of ⒀ of Qian of station of pharynx of drought neon Zhan uglies enemy
Did not disagree, but because this courtyard is in,fault exists in fulfilling process of medical services contract, guide
Deliver the generation of charge of relevant medical services, reason this charge should not assume; by accuser and second cure
The receipt of medical services cost of the courtyard has nothing to do with this case, do not answer to be advocated in this case by armour hospital.
During the court is tried, forensic Xiang Yuan tells Huang Mou service afore-mentioned unskillful and faulty medical or surgical services
Technical appraisement book.
2 courts adjudicate
Receive postscript of technical appraisement of unskillful and faulty medical or surgical services, huang Mou is satisfied in May 2006 to
The court applies for to nolle prosequi. The court allows to appealing to case ruling originally subsequently accuser Huang Mou is removed
Appeal to. This appealing to that the case ends.
In September 2006, huang Mou of countercharge the accused is less than front courtyard without warrant via subpoena
Join suit, the court gives to countercharge case judgment by default: Quite? countercharge the accused)
To armour hospital (countercharge accuser) pay medical services to expend Yu Yuan and 10500 accrual, return still
Medical services cost, with blood coadjutant gold pays interest more than yuan 10100. This case lawsuit suffers
Manage cost is assumed more than yuan 800 by Huang Mou of countercharge the accused, appraisal is expended by countercharge accuser

Armour hospital burden, the counterclaim that hospital of countercharge accuser armour already made beforehand accepts fee more than yuan 800 do not grant go back,

By countercharge the accused Huang Mou is given in the court decision pay deadline internal diameter to pay countercharge former
Accuse armour hospital. Judgment is here medium, the court thinks: Live ⒁ Yi is uncovered all why  this
The accused Huang Mou offerred medical services make a diagnosis and give services to serve, behoove of Huang Mou of countercharge the accused is raised to its
Pay corresponding medical services to expend in order to to reach assume the other charge that generates from this. Countercharge former
The hospital that accuse armour asks Huang Mou pays the medical services that default to expend Yu Yuan and 10500 accrual,
The medical services fee that returns acting still mat, help each other with blood golden plan pays interest more than yuan 10100
Reasonable and lawful, should grant to support. Show and confirm without evidence, hospital of countercharge accuser armour is in
Fault exists in the process that fulfils medical services contract and cause afore-mentioned medical services cost produce
Unripe, reason is yellow to countercharge the accused some relevant and contradictory opinion does not grant to adopt.
3 legal principle are commented on
3.1 cases are countercharge case countercharge, it is to point to in the lawsuit that has mentioned
In, the accused is asked in the light of the independent suit that offers with fact of original suit contact
Beg. " code of civil law " the 126th regulation: Uranous Dong of Mian of bully  Bi
Request, the accused puts forward countercharge, the 3rd person puts forward the litigant request that concerns with this case,
OK and amalgamative cognizance. " " top people court about < People‘s Republic of China civilian
Job procedural law > the opinion of a certain number of problems " also set the 156th times: Bully
After the case is accepted, before judicial controversy ends, accuser increases litigant request, the accused is carried
Give countercharge, the 3rd person puts forward the litigant request that concerns with this case, OK and amalgamative cognizance
, people court ought to incorporate cognizance. " among them, "In fact connection " point to namely
Between the litigant request of countercharge and the litigant plea that this appealing to, in have some in fact
Kind embroil.
Countercharge can by this appealing to that the accused is aimed at this appealing to that accuser puts forward to the court. Countercharge
The party that mixes this appealing to is same, it is litigant position crossing-over only just. Of countercharge carry
This appealing to must be in since after holding water, before judicial controversy is terminative, at latest must not is later than
The court enters a judgement to this appealing to or rule when (in this case, hospital of the accused armour namely
It is the) of the countercharge since the premise that nolles prosequi to appealing to ruling allow originally in the court. Countercharge is
This opposite appealing to and of character, do not have this appealing to to do not have countercharge. Although countercharge is in form
Go up to be premise with the presence that this appealing to, but countercharge request itself must have independence
Quality, and Lai Yuben notting comply appeals to. Countercharge by this appealing to that the accused mentions, have legal sense
Of the tell principal part that go up, mark reach ground. Accordingly, have Lai Yuben notting comply to appeal to alone
Establish a gender, although appeal to from book size,also can hold water.
The countercharge right of the accused is " civil litigant enjoys equal lawsuit
The right " the incorporate of this one legal principle. Law is in gift accuser sues authority
Also gift while the accused countercharge counterpoises, just be helpful for protecting both sides equally so
The legitimate rights and interests of party. In this case, it is accuser Huang Mou above all to armour hospital
Offer suit, and technical appraisement of unskillful and faulty medical or surgical services is issued in the accused hind, accuser to the court
Application nolles prosequi, at the same time the accused also puts forward countercharge to accuser, ask its pay relevant medical service
Cure charge. Because the accused adopted the strategy of countercharge correctly, this
Record central issue by " whether to make unskillful and faulty medical or surgical services " and " the hospital should be denied assume tort
Responsibility " move arrived " medical services charge is assumed " the problem comes up, the change of brief of a case
Also make the quote liability that bring a case to court disputes a fact corresponding ground move comes patient one party, together with
This case suffers from just be less than front courtyard to should appeal to without warrant refus, facilitated to be opposite further thereby
Cure square more favorable lawsuit situation.
3.2 cases do not make unskillful and faulty medical or surgical services, but to whether making medical services because tort is former
Accuse Huang Mou to nolle prosequi automatically namely nonuser makes so that the court does not have necessary undertake lawfully again
Cognizance is in case of dispute of medical services tort, answer above all laws and regulations of basis concerned law
Will maintain behavior of experience case medical services to whether make unskillful and faulty medical or surgical services.

" unskillful and faulty medical or surgical services handles byelaw " the 2nd regulation: ? of deer of the analyse that make agitate smooth with a rake is to point to medical establishment and person of its medical affairs
Member in medical services activity, disobey medical services sanitation to run law, administrative regulations, department
Regulations and diagnosis and services nurse standard, groovy, error creates the job that patient person damages
Reason " . Additional, thirtieth sets 3 times: Fertile  bad? does not belong to dam Xing aluminous Xing Yue
Unskillful and faulty medical or surgical services: (One) rescue is below emergency dying patient life and adopt
The; that urgent medicine measure causes undesirable consequence... " and the medical services according to this case
Accident appraisal conclusion, cure square medical services behavior is blameless, diagnose correct, handle arrange
Apply reach accord with diagnosis and services nurse groovy; at the same time, the patient‘s hysterectomy is to delay abortion
Travel Qing Dynasty is when palace art effective and hemostatic reach the urgent cure that save patient life and adopts
Measure, accord with afore-mentioned thirtieth in 3 regulations " do not belong to unskillful and faulty medical or surgical services " affection
Form. Accordingly, this case does not make unskillful and faulty medical or surgical services.
So, this case whether form the tort of other medical services beyond unskillful and faulty medical or surgical services?
" civil code general rule " the 106th the 2nd section provision: Quan of take along sth to sb of Sou of ㄈ of ⒎ of Ang  Chi
Wrong... of belongings of enroach on other, person, ought to assume civil responsibility. " accordingly,
Compare with appearance of liability of general and civil tort, the tort of other medical services beyond unskillful and faulty medical or surgical services
Responsibility, ought to have likewise the following 4 important document: (What 1) damages a fact is objective put
In, must going up objectively namely cause belongings to damage or spirit is damaged. (2) behavior
Have illegal sex, if because legal action is caused,be damaged, do not assume for the person all right duty
Allow. (Behavior of 3) do harm to and damage have between consequence cause with what be caused because of
Concern if really. (4) behavior person is subjective go up existence fault, include intended or error.
Of course, the hypostatic sex important condition that this is liability of tort of cure of go to a doctor only, but in the program
Quality (evidence) on important document, medical services tort has the specialty that decides firstly. General
Civil tort liability is adopted " holds whose quote " proof principle, namely by fall victim
Person quote proves afore-mentioned four respects to make important document. And the cognizance of liability of medical services tort
Executed quote responsibility convert to partial important document, basis " top people court
A certain number of regulations about civil suit evidence " the 4th the first (8) compasses
Calm: ? of avarice of ň of that order of Lu of  of  of form of Pu of the agitate that make Kuo smooth with a rake by behavior of cure of medical establishment go to a doctor
With damage consequence between nonexistent causal reach fault of nonexistent medical services to assume lift
Card responsibility. " if cure behavior of square indemonstrable medical services and damage consequence between not
Existence is causal and without fault, illative assume medical services tort by its duty
Allow. And suffer from just need to give to medical services behavior and the objective existence that damage a fact only
Proof can.
In this case, cure just is perform afore-mentioned quote duty, classics apply for and by the court appoint
Hold this city medical service in the palm to learned to be made to behavior of experience case medical services " do not make unskillful and faulty medical or surgical services "
technical appraisement conclusion. Basis " code of civil law " regulation, civil suit card
According to including: (1) book card. (2) material evidence. (Data of 3) seeing and hearing. (4) witness testimony
Character. (The allegation of 5) party. (6) appraisal conclusion. (7) survey produce the expected result notes. This
The legal appraisal branch that the proclaimed in writing that appraisal conclusion points to in sets makes or by
People court place is approbated, the identification that precatory appraisal branch makes. Unskillful and faulty medical or surgical services
Technical appraisement conclusion serves as " appraisal conclusion " a kind, like other evidence,
Belong to legal evidence form, the court can hold medical service according to this appraisal conclusion square
medical services behavior and suffer from square harm whether does inevitable cause and effect exist to close between the result
Department. And the conclusion of technical appraisement of unskillful and faulty medical or surgical services of this case points out clearly already: Buccal well
Palace excision is to delay art of abortive travel clear palace is intercurrent massive haemorrhage, haemorrhage is more than and adopt
urgent cure measure, cure square nonexistent with damage consequence to have pass causally
Miss medical services action. Not only such, after receiving the testimonial that is not unskillful and faulty medical or surgical services,
Accuser Huang Mou applies for to nolle prosequi, ought to be regarded as nonuser namely, so, right whether
Form the problem of medical services tort besides unskillful and faulty medical or surgical services to let a court also not was necessary to undertake cognizance lawfully again.

The right can abandon, to nonuser matters concerned, law is
Do not have interference. Consequently, armour hospital also does not make unskillful and faulty medical or surgical services likewise beyond
tort of other medical services.
The effectiveness flaw of contract of 3.3 medical services does not affect medical services cost give Fu Ben record
Whether is the controversy focus of countercharge affecting medical services cost at the effectiveness flaw of medical services contract
Use pay an issue. Armour hospital thinks, since provided service of medical services make a diagnosis and give services, manage
Should pay charge of corresponding etc of medical services charge; and the patient is yellow some with " cure
Charge of medical services of cure fault generation " for and reject to pay, who ought to support?
Apparent, in countercharge case, as a result of the patient Huang Mou is in absent, so, the court adjudicates support
armour hospital appeals to beg. But whether does the effectiveness flaw of medical services contract affect medical services cost
Give pay an issue? The court did not undertake cognizance apparently.
To this, we might as well the effectiveness state that serves a contract from medical services and medical services are taken
The special attribute of Wu contract sets out, the behavior that will inspect armour hospital has deny be worth to change
The place that take. But should explain, according to accuser Huang Mou appeals to beg, when this record put on record with medical services
Accident damages is brief of a case, not be with medical services contract is brief of a case,
With, the discussion below, undertake an analysis from legal principle, the purpose is to facilitate each just undertake
Think with be on guard.
Above all, the medical services between hospital of the armour in this case and Huang Mou serves a contract whether
Have corresponding legal effectiveness? Examine this case cure just providing medical services for the patient
In the process of the service, when qualification of its main body, can discover its exist really have " violate
Law sex " , this respect is put in the flaw, affect its contract effectiveness. Specific and character has with
When to fall: Hospital of armour of show off? was not dealt with " technology of mother baby health care serves hold license of course of study
Card " , disobeyed " hygiene of baby of mother of People‘s Republic of China " regulation. " China
Hygiene of people republic Mu Ying " thirtieth sets 3 times " be engaged in this code deciding
hereditary disease is diagnosed, the personnel that antenatal diagnoses, must pass province, municipality, directly under the jurisdiction of
The assessment of service of sanitation of city people government, obtain corresponding certificate of conformity.
Operation of examination of the medicine before the marriage that is engaged in this doctrine regulation, applying ligate and stop gravid
The personnel of the operation and the personnel that are engaged in domestic deliver a child, must pass prefectural class above
The assessment of service of sanitation of local people government, obtain corresponding certificate of approval
Book " . The hospital belongs to a country concessionary management special type industry, and " ability of mother baby health care
Art serves hold licence of course of study " be by " hygiene of Mu Ying of People‘s Republic of China "
An administration of establish is permitted, have general legal effectiveness. Armour hospital without
The country is engaged in service of mother baby health care namely about director branch license, its conduct character
Belong to illegal practise medicine. The 2nd, disobeyed via studying doctor behaviour " China people in all
With the country hold law of doctor of course of study " regulation. Via ordering a physician " technology of mother baby health care serves
Hold licence of course of study " certificate of the ground that fasten different, did not deal with hold industry spot changes procedures, disobey
" People‘s Republic of China hold law of doctor of course of study " the 14th namely " doctor classics is registered
Hind, can be in orgnaization of medical services, precaution, health care according to what register hold industry spot, hold
Estate category, hold limits of course of study hold course of study, pursue business of corresponding medical services, precaution, health care.
Register without the doctor obtain hold industry letter, must not be engaged in a doctor hold industry activity "
Regulation.
The 3rd, because the qualification disobeyed the main body of armour hospital to have,this medical services a contract
Those who close legal laws and regulations is mandatory regulation, ought to maintain for invalid contract. According to
" contract law " fiftieth 2: Dam Xing aluminous Xing Yue contract of fertile  bad? is invalid:
... (5) of lawbreaking, administrative regulations mandatory regulation. " the place on put together is narrated, by
At be being put in afore-mentioned problems, because the main body qualification of armour hospital is violated,this medical services a contract
Those who turned over concerned law laws and regulations is mandatory regulation, ought to maintain for invalid contract.
Next, if medical services a contract to be maintained to be,disable, so, how should undertake invalid processing?
Apparent, this is a new issue. See view law set first. " China person
Civilian republican contract law " fiftieth 8: Hold murder of Yang of Щ of virtuous  Piao high to conceive useless  ?
Because of the property that this contract acquires, ought to give return return; to cannot be returned return or did not need
Want those who return to return, ought to compensation of convert into money. " tie this record, the main obligation of armour hospital
It is for the patient Huang Mou implements clear palace method, had measured because of bleeding in art after big, classics expert is met
Examine, to save patient life travel uterus body is excised, visible, order in medical services contract
After standing, armour hospital changes according to the trends of course of diseases, offerred really with its ability place
The corresponding medical services that reach serves, and this serves do not make unskillful and faulty medical or surgical services again. So,
Ought to can maintain for active service. If say existence problem, so, armour hospital
Also be decide of the ability after ought to be being examined through administration first.
As to patient Huang Mou, assume its even if accepts medical services to serve to be maintained to form
Invalid contract, but, obtain because of this invalid contract place " belongings " -- , medical services
Service -- , be not traditional sense to get on some kind however specific " content " , do not have can return
Return a gender, so its also cannot be returned in fact return; at the same time, as a result of its in fact already
Enjoyed this service, in do not make unskillful and faulty medical or surgical services below circumstance of without reason absent, court
The medical services cost that adjudicates its to ought to pay in order to pay its remedial place undertakes folding to armour hospital
Valence is compensated also have not cannot. Below this kind of case, with the medical services with patient effective basis
Serve what contract place ought to fulfill to give the obligation that pays medical services fee photograph comparing, although contract
Effectiveness existence flaw is invalid even, also namely property cannot be equal completely, but expressional form
Type and behavior consequence ought to be to differ not big.
Finally, the medical services cost that Huang Mou produces in second hospital, arise in haemal center
with charge of hematic coadjutant gold, in fact, also ought to fulfill to armour hospital
Those who pay is compulsory. The reason has 3: Between center of Huang? Huang Mou and second hospital, blood
The medical services contract that place establishs respectively and with hematic coadjutant contract, inefficacious flaw, should
Maintain for completely effective; secondly, center of second hospital, blood was fulfilled as agreed upon respectively
The contract obligation; that offers medical services and operation to use blood thirdly, huang Mou is being accepted
When medical services and operation use blood, not active capture is expended, should illative its with bright show or silent
Show means to entrust armour hospital for you pay for sb and expect to be repaid later is relevant charge, basis " contract law " the 3rd
198 regulations: Ah bag of Wei of Song of contraction of Xing of  of Zhai of  of  of the Song Dynasty of raw meat or fish of   Gorgon euryale is sought
Want fee, client ought to repay charge and its accrual. Client ought to repay charge and its accrual..
4 epilogue
In this case, huang Mou of patient of forensic court decision gives according to medical services contract pay relevant fee
With, effectively disappear defaults the affection such as medical services charge besides ill will thing, cogent protection
cure closes right increase just. But, the court is right opinion of technical appraisement of unskillful and faulty medical or surgical services
Adopt inadequacy, point out traditional Chinese medical science of medical services activity violates compasses illegal act just not clearly,
Fail to hold the effectiveness issue with contract of processing medical services correctly especially, it is to put
In the blemish with particular move.
In lawsuit of dispute of medical services contract, often reach the attention of the hospital as a result of the patient
The problem such as compulsory, communication inadequacy, the happening that brings about dispute even become acute, this not only
Bring about the addition of medical services charge, unskillful and faulty medical or surgical services is sent high, and also destroyed doctors and patients and
Humorous. Although say current contradiction and society of our country nowadays develop level and legal system
Not quite perfect and relevant, but be on guard to what doctors and patients contradicts, hospital and doctors more should
Try to notice, ought to pass hard, do not appear such as permits ground of limits, different more than
Hold the behavior such as course of study. Dimension authority controls oneself first surely, have such ability only from go up at all alleviate
Doctors and patients is contradictory, compose establishs relationship of harmonious doctors and patients.
(2008-07-13 receives draft)