Frequent medical cosmetology disputes, choose rational consumption carefully
□ Our reporter Xu Weilun
□ Correspondent Jiao Xiaoqiong
Recently, the People's Court of Chaoyang District of Beijing issued a white paper on civil trials of medical cosmetology disputes (2016-2020), and notified relevant typical cases at the same time.
Guo Lirong, vice president of the Chaoyang Court, stated at the briefing that in the medical cosmetology dispute cases concluded by the hospital in the past five years, the patients were mainly young and middle-aged women; the majority of the medical cosmetology institutions involved in the lawsuit were private institutions, and there were many types of faults. It manifests as failure to inform, improper operation, false propaganda, illegal medical practice, etc.
In response to the problems discovered during the trial, the Chaoyang Court wrote to the National Health Commission, suggesting to amend and improve the "Administrative Measures for Medical Beauty Services", to promote the revision of the Practicing Physician Law and the Medical Institution Management Regulations, to increase the fine limit, and to deal with serious violations of the law. Violating medical beauty institutions resolutely revoke and ban them, and impose a life-long medical ban on related units or individuals who seriously violate the law.
Beauty is disfigured if it fails
Triple compensation for medical fraud
Because she was not satisfied with her double eyelids, Ms. Zhang wanted to make adjustments through medical aesthetics.
By searching for keywords such as "double eyelid repair" on the Internet, Ms. Zhang found that the first 3 lines on the search page were all advertisements for a certain medical beauty clinic in Beijing.
After clicking to enter the homepage of the clinic, various promotional slogans came into view: "The No. 1 Eye Plastic and Repair Hospital", "M.D. Wang Moumou, focused on eye plastic surgery for forty years"... Seeing these, Ms. Zhang was moved.
In April 2017, Ms. Zhang went to the clinic for treatment.
After the simple face-to-face consultation, Ms. Zhang said that she would go back and think about it.
The next day, the clinic staff called Ms. Zhang and expressed that they wanted to invite her as a case model, saying that when the doctor performed the operation for her, doctors from all over the world would come to the scene to observe and learn, and the operation fee was 20% off.
Ms. Zhang felt that the clinic attaches great importance to herself, and at the same time, considering the price concessions, she decided to perform "double eyelid repair" surgery in the clinic.
Later, Ms. Zhang went to a Beijing medical aesthetic clinic to perform the operation on an appointment. However, no other doctors observed and learned during the operation.
At this time, Ms. Zhang realized that the teaching observation cases promised by the clinic were all fake, and she was not a case model.
After the operation, Ms. Zhang added new scars on both sides of the eyelids and epidermis on the lower corners of the eyes. It was difficult to open the eyes and there was a feeling of pulling. Her eyes were dry and painful, photophobic and tearful, which lasted for nearly a year.
After many communications and negotiations, the clinic promised to repair Ms. Zhang again.
In March 2018, Ms. Zhang underwent repair surgery again at the clinic, but there was still no significant improvement after the operation, and the function of both eyes was impaired to a certain extent.
The beauty failed but was "disfigured." In desperation, Ms. Zhang sued the medical beauty clinic to the court.
After investigation, the court found that a medical beauty clinic in Beijing posted a number of advertisements on its WeChat official account that did not match the actual situation, and was once subject to administrative penalties.
During the trial of the case, Ms. Zhang's disability level was ninth level after judicial appraisal.
In the "Explanation on Ms. Zhang’s Appraisal Case", the Judicial Appraisal Center stated that “in view of the faulty behavior of the doctor, especially the lack of communication, it directly affects the degree of satisfaction of the medical practitioner with the effect of the operation, and this is also the evaluation of the effect of cosmetic surgery. On the grounds of an important indicator, it is suggested that “medical prescriptions account for the main reason”.
After the trial, the court found that a medical beauty clinic had false propaganda and deceived consumers. Ms. Zhang was misled to receive medical beauty services. It should be determined that the beauty clinic was fraudulent in providing consumer medical beauty services to Ms. Zhang .
According to the relevant provisions of the Consumer Rights Protection Law, a medical beauty clinic in Beijing should increase compensation for the losses suffered by Ms. Zhang in accordance with Ms. Zhang's request. The increase in compensation is three times the cost of Ms. Zhang's service.
In addition, the medical cosmetology clinic’s diagnosis and treatment behavior has been identified as faulty, and Ms. Zhang should be responsible for the main compensation for various expenses for medical treatment.
Accordingly, the court ordered the defendant’s medical beauty clinic to compensate Ms. Zhang for three times the loss of more than 230,000 yuan, and compensate Ms. Zhang’s medical expenses and nutrition expenses in total more than 470,000 yuan.
Guo Lirong stated at the briefing that from 2016 to 2020, Chaoyang Court concluded 195 cases of medical cosmetology disputes, involving 77 medical cosmetology institutions, including 75 private institutions.
Among the 77 medical cosmetology institutions involved in the lawsuit, 46 were administratively punished for publishing advertisements or false propaganda in violation of regulations, accounting for 59.7% of the medical cosmetology institutions involved in the lawsuit. People's medical beauty experience, risk avoidance notification, and exaggeration of medical beauty effects are more common forms of false propaganda.
The judge suggested that people with “medical beauty” needs should do a pre-examination before seeking medical treatment, choose a formal medical beauty institution, pay attention to verifying the qualifications of medical beauty institutions and the qualifications of medical staff, and avoid rash decisions due to credulity in advertising.
In addition, cosmetology seekers must master certain legal knowledge and retain necessary evidence during the treatment process, including keeping records, payment vouchers, pre-medical cosmetology design plans and other medical treatment data.
Indulgent pseudonyms are prone to disputes
Judicial recommendations for real-name medical treatment
During medical cosmetology, some customers will choose alias registration for medical treatment due to personal privacy and other factors, but they do not know that such behavior will bury hidden dangers for future rights protection. Xie is one of them.
Prior to this, Xie went to a medical beauty hospital for facial skin beauty treatment under the pseudonym "Wang".
The hospital subsequently performed medical treatments such as injections of hyaluronic acid, botulinum toxin, and collagen.
After the operation, Xie's face deformed, and the two sides had a dispute.
Xie went to the court and demanded the defendant to pay more than 390,000 yuan for medical expenses and damages.
In the litigation, Xie submitted the patient’s medical records, bank transaction details, pre- and post-operative photos and other evidence to prove that he was "Wang", and stated that the relevant signatures were all written by himself, but Perform handwriting identification.
The defendant argued that the patient’s name in the medical record provided by Xie was not Xie, and it could not prove that Xie was the actual patient and did not agree to all Xie's claims.
After mediation by the court, the two parties reached a settlement, and Xie withdrew the lawsuit.
Regarding the prevalent problem of pseudonymous medical cosmetology, the Chaoyang Court pointed out in its judicial advice sent to the National Health Commission that some medical cosmetology institutions involved in the lawsuit allow cosmetology seekers to use pseudonyms to seek medical treatment. After the litigation occurs, they will be treated as medical seekers. The denial of the medical relationship on the grounds of inconsistency with the prosecutor’s name has led to difficulties in ascertaining the eligibility of the prosecutor. If there is no other evidence to support it, the legitimate rights and interests of the cosmetologist will be difficult to protect, and the illegal activities of the medical cosmetology institution will not be promptly sanctioned.
The judge suggested that in the field of medical cosmetology disputes, the establishment of a real-name medical treatment system should be promoted to prevent cosmetology medical practitioners from seeking medical treatment under aliases; for medical cosmetology institutions that fail to verify the medical cosmetology medical practitioner’s name and other medical information, or induce cosmetology medical practitioners to use aliases or pseudonyms to seek medical treatment, Be punished accordingly.
Refused medical records cannot be identified
The clinic is fully responsible for the fault
Huang was introduced by a consulting company and went to a medical beauty clinic for rhinoplasty and cosmetic surgery.
After the operation, Huang was diagnosed with "perforation in the upper part of the nasal septum".
Since then, due to the unsuccessful negotiation between the two parties, Huang brought a lawsuit to the court, demanding that the consulting company and the medical beauty clinic jointly compensate him for medical expenses, transportation expenses, and disability compensation for a total of more than 140,000 yuan.
During the trial, Huang applied for forensic appraisal, but because the medical beauty clinic was unable to provide Huang's medical records, the forensic appraisal could not be carried out.
After the trial, the court held that in accordance with relevant laws and regulations, because the medical aesthetic clinic refused to provide medical records related to the dispute, it should be presumed to have medical fault; and the lack of medical record data led to the inability to identify, which led to the inability to find out the "diagnosis and treatment of the medical aesthetic clinic" The fact of the case is the causal relationship between the behavior and Huang’s damage consequences.
Accordingly, the court ordered the defendant's medical beauty clinic to bear full compensation liability for Huang's reasonable losses.
The judge later stated that the current medical cosmetology market has a prominent problem of irregular medical records, and medical cosmetology institutions involved in lawsuits generally have problems such as oversimplification of medical records, irregular writing and modification, and improper storage. Some attending physicians have not implemented the responsibility system strictly, resulting in medical records. Missing data or irregular records, missing medical beauty design and beauty program records.
The judge pointed out that medical cosmetology institutions should consciously abide by relevant laws and regulations, strictly implement medical cosmetology-related diagnosis and treatment guidelines or technical operating procedures, regulate the writing and storage of medical cosmetology medical records, and shall not disclose or disclose their medical records without the consent of the cosmetologist. Properly protect the privacy or personal information of cosmetic medical practitioners.
Medical cosmetology institutions can scientifically approve quality control norms based on their own conditions, conduct assessment and supervision of practitioners, and include diagnosis and treatment behavior, medical record writing, and medical record management into the scope of assessment.
After a dispute occurs, properly seal the medical record data, do not forge or tamper with the medical record data, do not conceal or refuse to provide the medical record data related to the dispute, and actively and promptly handle the dispute through its own coordination or communication mechanism to resolve the conflict.
Unauthorized replacement of brand prosthesis rupture
Compensation for refund of breach of contract
Before that, Xu went to a medical beauty clinic for breast augmentation and repair.
After the operation, Xu was diagnosed as "right breast prosthesis rupture" and underwent surgical treatment again.
Due to the unsuccessful negotiation on compensation and other matters, Xu went to the court and held that the clinic had implanted a prosthesis of a non-contracted brand for him, and the source of the prosthesis was unknown and could not prove the quality of the product. He asked the clinic to compensate him for medical expenses and mental damage Various losses including comfort money were more than 130,000 yuan.
During the litigation, the court entrusted an appraisal agency to appraise the quality of the prosthesis product in accordance with the law, but the defendant was unable to provide the prosthesis product identification code, and the prosthesis had been discontinued, so the appraisal could not be provided due to insufficient sample quantity.
After the trial, the court held that the defendant’s clinic changed the brand of the prosthesis without Xu’s consent, and could not prove that the quality of the prosthesis actually used was qualified, which constituted a breach of contract and should bear the corresponding liability for breach of contract.
Accordingly, the court ordered the defendant to refund Xu's implantation cost and compensate Xu for the medical expenses incurred in replacing the prosthesis due to the "right breast prosthesis rupture" problem caused by the implanted prosthesis of unknown quality. The total amount is more than 120,000 yuan.
Relevant provisions of the Civil Code
Article 1222: If a patient is harmed during diagnosis and treatment activities, and one of the following situations occurs, it is presumed that the medical institution is at fault:
(1) Violating laws, administrative regulations, rules and other relevant regulations on diagnosis and treatment;
(2) To conceal or refuse to provide medical records related to the dispute;
(3) Loss, forgery, tampering with or illegal destruction of medical records.
Relevant provisions of the Consumer Protection Law
Article 55: Where a business operator engages in fraudulent acts in providing goods or services, he shall increase compensation for the losses suffered by consumers in accordance with the requirements of consumers. The increased amount of compensation shall be three times the price of the goods purchased by the consumers or the cost of receiving services; If the amount of compensation is less than 500 yuan, it shall be 500 yuan.
If the law provides otherwise, follow those provisions.
Lao Hu Comments
With the development of society and the increase of income, people's expectations and requirements for appearance are also constantly increasing.
Driven by the huge market demand, the number of medical beauty institutions has also increased rapidly.
However, from the cases in this issue, we can see that conflicts and disputes caused by improper medical cosmetology operations, false propaganda, illegal medical practice, etc. have also occurred frequently and frequently.
The main reason is that some medical beauty institutions disregard laws and regulations, professional ethics, and social responsibilities for profit, and even cheat medical beauty consumers.
At the same time, due to the rapid development of the medical cosmetology market, the relevant legislation is relatively lagging, and there are loopholes in the regulatory measures, giving illegal operators an opportunity.
Therefore, relevant departments should conscientiously summarize the loopholes exposed in various medical cosmetology conflicts and disputes, timely revise and improve relevant laws and regulations, continuously strengthen supervision measures, actively perform supervisory duties, and resolutely put an end to forgetting profits, false propaganda, and undocumented employment. To protect the lives and health of the people.
At the same time, it is hoped that when people receive medical beauty services, they must choose formal, professional and reputable medical beauty service institutions and carefully review the qualifications of relevant institutions and practitioners to enhance their self-protection awareness.
Hu Yong