[HEALTH LAW ARTICLE]
WHEN A MEDICAL INCIDENT OCCURS, WHO IS RESPONSIBLE FOR COMPENSATION?

With the continuous development of science and technology, the medical industry has grown tremendously, in addition to expanding the scale of medical examination and treatment facilities, it also improved the capacity of medical examiners to meet the needs of patients. human health care needs. However, in the process of medical examination and treatment, medical complications cannot be avoided. So if this happens, who will be responsible for compensation? Let's find out with MEDLAW today!

According to the provisions of Clause 1, Article 73 of the Law on Medical Examination and Treatment 2009, the following provisions:

1. Practitioners make professional and technical errors when they are determined by the Professional Council as prescribed in Articles 74 and 75 of this Law to have committed one of the following acts:
a) Violation of responsibilities in caring for and treating patients;
b) Violations against regulations on technical expertise and professional ethics;
c) Infringing upon the patient's rights.

2. Practitioners have no professional and technical errors when they are identified by the Professional Council as prescribed in Articles 74 and 75 of this Law in one of the following cases:
a) Having strictly followed professional and technical regulations in the course of medical examination and treatment, but accidents still occur to patients;
b) In case of emergency but due to lack of technical means and equipment, lack of practitioners according to the provisions of law, it is impossible to remedy or the disease has not been prescribed by professional regulations, leading to the occurrence of the disease. accidents to patients; Other force majeure circumstances lead to accidents for the patient.

The conclusion or identification of the practitioner having professional and technical errors falls within the competence of the Professional Council as prescribed in Articles 74 and 75 of the 2009 Law on Medical Examination and Treatment. If the parties disagree with the conclusion. of the Professional Council, the parties have the right to request the Ministry of Health to establish a Professional Council according to the provisions of Point a, Clause 2, Article 74 of this Law. The conclusion of the Professional Council established by the Ministry of Health will be the final conclusion.

According to Article 76 of the 2009 Law on Medical Examination and Treatment, the liability to compensate for damage when an accident occurs during medical examination and treatment is prescribed as follows:

1. In case a professional or technical error occurs, causing accidents to the patient or in the case specified at Point b, Clause 2, Article 73 of this Law, the insurance enterprise purchased by the medical examination and treatment establishment The insurer is responsible for indemnifying the patient for damage under the insurance contract signed with that medical facility.
In case the medical examination and treatment establishment has not purchased insurance as prescribed in Clause 1, Article 78 of this Law, it must compensate the patient for damage according to the provisions of law.

2. In addition to the compensation specified in Clause 1 of this Article, medical examination and treatment establishments and practitioners who have professional and technical errors that cause accidents to patients must bear other legal responsibilities according to regulations. provisions of the law.

3. In case an accident occurs during medical examination and treatment as prescribed at Point a, Clause 2, Article 73 of this Law, the medical examination and treatment establishment and the practitioner are not required to pay compensation for damage.

The basis for determining compensation for damage must comply with the provisions of the Civil Code 2015 including the following 4 elements: (1) Damage must have occurred; (2) Must have committed illegal acts; (3) There is an error; (4) There must be a causal relationship between the illegal act and the damage caused. The determination of the level of compensation for damage when professional and technical errors cause accidents to patients are specified in Article 77 of the Law on Medical Examination and Treatment 2009.

Thus, the occurrence of medical accidents is inevitable, but only when there is a conclusion of the Professional Council about the professional and technical errors of the medical examination and treatment establishment and the practitioner, The medical examination and treatment establishments, practitioners or insurance enterprises with which such establishments have signed an insurance contract must compensate for damage.