Is it hard to defend rights in medical beauty fever?
Becoming beautiful is not an easy task. About 50,000 posts in Baidu Tieba's "Plastic Surgery Failure" prove this point.
In this post bar followed by more than 170,000 people, people who have failed plastic surgery revealed their bare face photos: some people had a thread carving operation to lift their cheeks, the thread was shallow, and red abscesses bulged on the cheek surface; some people had cost cartilage rhinoplasty surgery Later, he showed the asymmetric nostril after the operation to the netizens in the post bar.
They exchanged their rights protection progress and postoperative recovery progress in the post bar, and very few of them successfully defended their rights.
Except for photos without makeup, many consumers can't produce other evidence to prove that their surgery failed.
Someone posted a message, looking for a "sister" who defended their rights together; somebody sighed, "I can't sleep every night and want to die."
Cao Wei, director of the legal department of the China Plastic Surgery Association, concluded that consumer rights protection often go through the following process: first negotiate with the hospital, make a complaint call, go to the hospital to make trouble, abuse on the Internet, and finally think of legal proceedings.
Among them, less than one-third will take the form of litigation to defend their rights, and more people will choose to negotiate with the hospital or make trouble.
"The medical beauty industry urgently needs a targeted regulation, or a mechanism that can solve social conflicts." He believes.
"One (compensation) price per person, rights protection depends entirely on personal negotiation and communication skills"
Many consumers who have failed plastic surgery find it difficult to prove their pain.
Many people who want to defend their rights told reporters that the problem they face is that they did not leave medical records or contracts when undergoing medical surgery, and they rarely had inspection reports before and after the operation.
Some people underwent five or six repair operations after the operation failed, but did not leave a post-operative photo of the first operation, which made it difficult to prove themselves when defending their rights.
The People's Court of Changning District of Shanghai issued the "2015-2019 White Paper on Judicial Trial of Medical Aesthetic Disputes Cases". In the typical cases it introduced, the reasons for the failure of rights protection were varied.
When someone purchases a service, they transfer money to the personal account of a staff member of a medical aesthetics institution, so there is a lack of relevant consumption records.
In order to protect personal privacy, some people use pseudonyms to seek medical treatment. After a dispute occurs, it is difficult to determine the medical relationship and the qualifications of the litigation subject.
In addition, there are people who have failed plastic surgery, worrying that their friends and relatives will know about the plastic surgery past and are unwilling to publicly defend their rights.
A person who helped others defend their rights said that after someone had plastic surgery, they deleted all the past photos, hoping to erase the past and start over, which resulted in the inability to effectively fix the evidence when defending their rights.
Even if the evidence is retained, how to prove that the medical and aesthetic surgery failed is still a difficult problem.
A woman who was undergoing a shortened operation in Chengdu, found that there was a pale white scar at the junction of the human body and the nose after the operation.
After the recovery period, the scar became shallow, but she cared very much. For this reason, she performed three repair operations in succession, but the scar was not completely eliminated.
She hopes that the medical and aesthetic institutions can refund half of the surgery fee and compensate for the cost of the repair surgery.
For this reason, she went to the medical and aesthetic institutions to negotiate many times, and always "didn't agree" with the hospital, and the hospital asked her to go directly to the judicial appraisal procedure.
She ran to consult the local appraisal agency again, and the staff told her that her scar was less than 6 cm and "cannot be appraised."
She also tried to call the complaint hotline, and the relevant local authorities organized mediation many times, but the two parties failed to reach an agreement.
In the end, she put on a T-shirt painted with the words "destroy face" and "rights protection" red and appeared at the door of the medical beauty agency. The medical beauty agency called the police, and the police failed to coordinate a mutually satisfactory plan.
In order to stop her, the medical beauty agency hired two new guards.
She joined a WeChat group with 30 human rights defenders.
They rushed from the sky to Chengdu to perform cheap medical and aesthetic operations, but they did not have a face that met their expectations.
Occasionally, group friends will cheer each other up and talk about the failure of medical aesthetics, but more often they are silent.
A rights defender said, "Everyone has no time to toss about remote rights protection."
A practitioner in the medical aesthetics industry has helped about 300 people defend their rights on social media. He has summarized a set of "processes" for medical aesthetics institutions to deal with rights defenders.
The first step is to delay the tactics. The hospital will send a professional after-sales team to appease consumers. There is a recovery period of 3 to 6 months after the operation.
Some people ridicule, this is "become a ghost first and then be beautiful".
As for how long the recovery period can be used to delay, "completely depends on the degree of anger expressed by consumers."
When it comes to the negotiation stage, the medical aesthetics organization will take a cold treatment. First, the consumer will set the price for compensation. No matter how much it is, the price will be lowered.
Cao Wei found that when medical and aesthetic disputes occur, the coordination between consumers and hospitals often fails to achieve a result that both parties can recognize. Institutions such as medical adjustment commissions and consumer associations often find it difficult to mediate successfully. If rights are defended through legal proceedings, most consumers It is difficult to accept litigation cycles that last as long as one or two years.
This forces many consumers to choose methods such as making troubles to resolve disputes quickly and forcing medical and aesthetic institutions to make compensation as soon as possible.
Under the rapid expansion, the management of some medical and aesthetic institutions is not standardized
Since the emergence of the first private medical beauty institution in China in 1997, the medical beauty industry is experiencing rapid development in China.
Some cities have proposed the strategy of developing a "medical beauty capital". The number of medical beauty institutions has grown from 159 in 2016 to 383 today.
In a 200-meter street in the city center, three medical and aesthetic institutions appeared.
While the medical beauty industry is developing rapidly, the number of disputes is also increasing.
According to a white paper issued by the People's Court of Changning District, Shanghai, from 2015 to 2019, the number of cases of medical cosmetology disputes handled by the hospital increased year by year, and the disputes occurred in private hospitals.
According to statistics from the National Consumers Association, there were 7,233 complaints in the medical beauty industry in 2020, and the top three complaints were after-sales service, contract, and quality.
Zhu Wei, a lawyer from Beijing Beidou Dingming Law Firm, believes that the current development trend of China's medical aesthetics industry is similar to that of South Korea a few years ago.
At that time, many Chinese went to Korea for plastic surgery, and Korean plastic surgery hospitals expanded wildly.
According to the 2015 notification of the China Plastic Surgery Association, in 2014, the total number of Chinese people going to Korea for plastic surgery was 56,000, and the incidence of accidents and disputes increased by 10%-15% per year.
Zhu Wei once helped Jin Weikun, a Chinese girl who failed plastic surgery in Korea, defend her rights.
She underwent 12 facial cosmetic procedures in a hospital known as "zero accident", none of which was successful.
In the process of preparing for Jin Weikun's transnational lawsuit, Zhu Wei contacted 15 people who failed to undergo cosmetic surgery in South Korea.
They contacted Korea Plastic Surgery Hospital through an intermediary. None of them had contracts or medical records, and only a few had medical records.
The lack of evidence and long litigation time blocked their rights protection process, and in the end no one succeeded in defending their rights.
Irregular institutions have also brought problems to China's medical aesthetics industry.
IResearch found that in 2019, there were about 13,000 qualified medical beauty institutions nationwide, and more than 80,000 lifestyle beauty shops illegally carried out medical beauty projects.
In addition, the rapid expansion of the medical beauty industry has brought many blind consumers.
Shi Lili, the technical director of Beijing Fenglian Lige Medical Beauty Clinic, often performs eye repair surgery for those who have failed cosmetic surgery.
She found that many consumers lacked communication with the doctor when they had the first surgery. Some only saw the doctor for a few minutes before rushing to determine the plastic surgery plan, and some recommended the plan by the sales staff before seeing the doctor at the operating table.
A 35-year-old man from Chongqing, under the recommendation of a friend who had known him for several years and had little conversation, underwent three nasal cosmetic procedures: nose reduction, nose reduction, and nose elevation.
He had never known about this hospital beforehand, and he completely obeyed the recommendation of a friend. He didn't even ask for medical records and contracts from the hospital.
It was not until after the operation that he felt that his nose was getting bigger, so he went to find a friend. The friend suddenly changed his face and was unwilling to continue communicating with him. He had to sue the medical and aesthetics institution to get the operation fee back.
He submitted the only two pieces of evidence to the court-billing receipts and chat records with the hospital.
The judge dismissed his claim because the receipts and chat records can only prove that he paid the fees and disputed the effects of the operation, but they could not prove that he had undergone nasal surgery at this institution.
What's more, the hospital he went to has changed its name.
Many people who had failed plastic surgery recalled that friend recommendations and advertising effects made them relax their vigilance, and failed to obtain relevant certificates from medical and aesthetic institutions in time, which made subsequent rights protection more difficult, and they could only suffer from dumb losses.
There are also problems in the record and preservation of medical records in many medical and aesthetic institutions.
The Chaoyang District People’s Court of Beijing has published a white paper on the trial of medical aesthetic disputes. It mentioned that the medical and aesthetic institutions involved in the lawsuit generally have problems such as over-simplification of medical records, irregular writing and modification, and improper storage.
Among the cases heard by the court from 2016 to 2020, 24 medical and aesthetic institutions have been administratively punished for their diagnosis and treatment activities that exceeded the scope of the registered diagnosis and treatment subjects.
A similar situation appeared in the white paper published by the People's Court of Changning District, Shanghai.
Due to the operation and management system of private medical institutions and the large flow of practitioners, the medical records of some patients are missing or incomplete, and the medical damage identification mainly relies on the hospital to record and keep the medical records.
After the dispute occurred, many patients did not recognize the authenticity of the materials issued by the hospital.
Moreover, in such cases, consumers may go to a number of medical and aesthetic institutions to repair their wounds after the operation fails.
When the judicial department hoped that the medical and aesthetic institutions not involved in the case would provide medical records, some institutions involved in the repair operation refused to provide the information, resulting in incomplete information required for the identification.
There is no set of regulations and appraisal systems that are clearly applicable to medical aesthetics
For many consumers, medical aesthetics appraisal is a complicated and long process.
The white papers of the People’s Court of Changning District of Shanghai and the People’s Court of Chaoyang District of Beijing mentioned that medical aesthetics appraisal requires a lot of materials, including medical faults, quality of medical products, notes, fingerprints, etc. If consumers question whether electronic medical records have been modified, Technical developers are also needed to assist in the extraction and extend the trial period of the case.
And some beauty products do not have the qualifications for identification.
For example, a cosmetic prosthesis that has been implanted in a patient may be at risk if it is removed for identification.
The white paper published by the Shanghai Changning District Court also mentioned that the number of institutions with relevant appraisal qualifications is small.
Due to the complexity and professionalism of medical aesthetic disputes, judicial appraisal institutions lack relevant expertise and do not accept the appraisal of such cases. The appraisal of medical aesthetic disputes involved in the Shanghai Changning District Court is conducted by medical associations at all levels.
However, the Medical Association’s ability to accept medical damage identification is limited, and the number of identifications cannot meet actual needs.
Therefore, the Changning Court actually has fewer cases that can complete the appraisal procedure.
Xu Ke, who has done forensic medical appraisal in Shenyang Public Security Bureau for more than 40 years, has long been concerned about medical damage in medical beauty.
He introduced that my country still does not have a unified definition, quantification and identification standard for the damage consequences of medical and aesthetic surgery.
The "Medical Malpractice Classification Standards (Trial)" and the "Human Injury Degree Appraisal Standards" used to deal with medical malpractice disputes are not applicable to aesthetic surgery that focuses on improving appearance.
For example, the "Human Body Injury Degree Appraisal Standard" stipulates that multiple scars on the face with a cumulative length of more than 6 cm are classified as minor injuries, but most of those who fail in medical aesthetics have small scars that do not meet the certification standards.
Xu Ke believes that the judicial appraisal of medical aesthetic surgery should not be based on the length of skin scars and wounds, but should be based on the impact on appearance, emphasizing changes in form and function.
The lack of clear regulations also includes post-operative management of medical aesthetics.
Xu Ke concluded that postoperative complications are often the core of medical and aesthetic disputes. At present, many medical and aesthetic institutions do not pay attention to postoperative management after performing operations, and are not responsible for the risk of complications. Generally, there is a lack of complication response programs and perioperative procedures. Period management and observation.
This also makes it difficult to determine whether the scars of medical aesthetics failures are caused by improper medical aesthetics operations or surgical complications and other reasons.
"Aesthetic surgery is only a small branch of medicine. Few people study the medical damage of aesthetic surgery." Xu Ke said.
Even if the appraisal procedure can be successfully completed, the road to litigation is not easy.
For example, consumers are concerned about the amount of compensation. In various local judicial practices, there are still disputes about which law should be applied to this issue in different cases.
Some consumers claim that the "Consumer Rights Protection Law of the People's Republic of China" applies. When the implanted prosthesis and the prior agreement do not meet or the medical aesthetics institution does not have the qualification certificate, or the doctor does not have relevant work experience, etc., the medical aesthetics institution constitutes fraud Consumers can claim punitive damages of "return one and compensate three", that is, unconditionally refund and compensate 3 times the loss.
However, the medical and aesthetic institutions refuted that these acts are medical acts and do not apply to this law.
Many lawyers and industry practitioners believe that there is no set of existing laws that can be applied to medical and aesthetic disputes.
For example, although the "Contract Law of the People's Republic of China" can determine the economic basis for liquidation compensation, it is difficult to compensate consumers for mental losses.
Consumers generally believe that the failure of medical aesthetics has seriously affected their lives and work, and their spirit has also been affected.
However, this subjective feeling is difficult to be included in the consideration of damages.
The Tort Liability Law of the People's Republic of China, which is applicable to compensation for general personal damages, cannot be fully applicable to medical and aesthetic disputes.
In many cases of medical aesthetics disputes, in addition to the negligence of medical aesthetics institutions, there are other reasons, such as postoperative complications, which cause harm to consumers.
The application of tort liability law may cause medical aesthetics institutions to assume responsibility for damages that they do not need to bear.
The People's Court of Changning District of Shanghai concluded that the biggest difference between medical cosmetology and medical activities lies in the lack of unified and detailed technical standards and regulations.
Some consumers file a lawsuit because they have not reached their ideal state, but the effect of medical aesthetics is mostly subjective evaluation, which is easily affected by their own aesthetic cultivation, preferences and evaluations of others.
A lawyer representing many medical and aesthetic disputes said that different medical and aesthetic institutions charge different fees for subsequent repairs, and it is difficult to objectively determine the compensation standard through a unified repair surgery cost.
Xiao Zhenggang, president of the Changsha Medical Beauty Association, believes that consumers who are willing to use litigation to defend their rights are rational and worthy of encouragement.
He once coordinated a dispute over mandibular grinding surgery. Consumers claimed 600,000 yuan for postoperative pain. He invited multiple experts to consult and evaluate postoperative expenses, and then pass imaging examinations to define mental loss, nutritional costs, etc. Finally, consumers He and the hospital agreed to the association's plan and compensated more than 100,000 yuan.
But sometimes, medical aesthetics practitioners need to face more complicated situations.
In 2018, a 46-year-old woman in Shanghai spent 1 million yuan on medical and aesthetic surgery, but left scars in many places.
After negotiating with the medical beauty agency to no avail, she hired others to make trouble in the beauty salon.
Later, the court sentenced the lady and the people she hired to provoke troubles.
According to Xiao Zhenggang, occupational medical disturbances have severely impacted the normal operating order of medical aesthetics institutions. In 2018, 112 formal medical aesthetics institutions in Changsha spoke in a group and demanded to crack down on medical disturbances.
The Changsha Medical Cosmetology Association has established a blacklist system. Consumers who have made claims in many organizations will be included in the blacklist of suspected medical troubles.
So far, the Changsha Medical Beauty Association has coordinated and resolved 13 typical medical incidents.
One consumer, who was unable to seek medical treatment due to being on the blacklist, took the Changsha Medical Beauty Association to court, demanding compensation for reputation damage and the removal of the blacklist.
The Tianxin District People’s Court of Changsha City held that the Changsha Medical Aesthetic Association’s warning notice in member institutions based on the report of the medical aesthetic institution was a measure taken in accordance with the industry convention. There was no subjective fault and the content of the blacklist notification contained no false facts. There were no consequences such as insults and defamation, and the litigation request was rejected.
As a breast plastic surgeon who has worked for 25 years, Xiao Zhenggang's latest feeling is that the development of medical aesthetics technology cannot keep up with consumers' demands and changes in beauty.
"Some institutions do not have customers, and customers can perform operations on whatever they want, forming a vicious circle."
According to an analysis by a medical aesthetics practitioner, most plastic surgery losers go to those illegal medical aesthetics institutions that are hidden and run. Once disputes occur, these institutions are unwilling to face up to the problem and affect the reputation of the entire medical aesthetics industry.
However, some formal institutions have to deal with fraudulent customers of "medical loans".
He suggested that referring to the rating system of public hospitals, all qualified medical and aesthetic institutions should be rated according to the top three and two standards, so that doctors can find suitable and formal medical and aesthetic institutions and not be superstitious in advertising and marketing.
He was dissatisfied with the status quo of the medical aesthetics industry, "The entire medical aesthetics industry is in roll, bad money drives out good money. In the end, no one takes advantage."
China Youth Daily · China Youth Daily reporter Wei Xi Source: China Youth Daily