Author: Anonymous 2016-12-27

——Analysis of Legal Issues Concerning the Payment Conditions and Calculation Standards of Subsequent Treatment Fees in Personal Injury Compensation Cases (Li Zhongnian)

[Summary] I have dealt with a large number of cases related to personal injury compensation, including general employee personal injury, traffic accident damage, work-related injury and compensation, special occupational infringement (medical dispute) compensation, etc. Although such cases are subject to relatively single legal provisions, such as Article 119 of the General Principles of the Civil Law, in practical operation, the payment of compensation fees is a problem, Especially due to disability or the inability to cure for a while, it is difficult to grasp the cost of continuing treatment. Therefore, I believe it is necessary to provide a specialized explanation and seek consensus on this issue.

[Keyword] Compensation renewal fee conditions

Personal injury often involves the need to continue treatment after the medical treatment is completed or the case is closed. Currently, relevant regulations only provide in principle that the responsible party should pay the necessary fees for continuing treatment. Undoubtedly, strengthening research on this issue will contribute to the sound and perfect legal system of compensation for infringement damages in China. This article intends to provide a preliminary discussion on the continuing treatment and its costs in general personal injury compensation.

1、 Conditions for continued treatment

After suffering personal injury, the victim often leaves behind disability sequelae after medical treatment, causing a lot of pain in life, requiring treatment such as later removal of internal fixation plates, steel nail surgery, scar cosmetic surgery, and later physical therapy and rehabilitation. But some of these treatments are necessary and reasonable, some are not necessary, or even worthless, and some are in between.

Therefore, the author believes that when determining the necessity of continuing treatment in personal injury compensation, attention must be paid to the following aspects.

（1） Correctly identifying the causal relationship between harmful behavior or outcomes and continuing treatment

The causal relationship in the elements of civil liability refers to the inherent and necessary connection between the actor's behavior and its objects and the fact of damage.

After certain treatment for personal injury, the causal relationship and compensation relationship between behavior and outcome have already been locked in after the treatment is completed. However, there is often potential damage that requires further treatment. For example, after the completion of burn treatment, facial scars are left and cosmetic surgery is scheduled to continue. From this, it can be seen that although the treatment of burns has ended, there is still a legal causal relationship between burns and facial cosmetic surgery. Obviously, the perpetrator must bear civil compensation responsibility for the victim's subsequent facial cosmetic surgery. It can be seen that the continued treatment in personal injury compensation must have a legal causal relationship with the damage behavior. That is to say, the civil compensation liability for the victim's continued treatment.

When examining the causal relationship of continuing treatment in personal injury compensation, it is necessary to exclude two situations. One of them is a medical accident or medical accident caused by medical personnel intentionally or negligently violating the rules, regulations, and technical operating procedures related to diagnosis, treatment, and nursing, resulting in the operation or loss, dysfunction, or loss of the victim's human tissues and organs, as well as the continued treatment and the victim's dependence on medical care. For example, in recent years, doctors who have been constantly reporting have forgotten foreign objects such as instruments and materials in patients' chest, abdominal cavity, pelvic cavity, intracranial and deep tissues during surgery; Wrong surgical site, etc. The second reason is that the victim's intentional, negligent, or unreasonable refusal to accept hospital examination and treatment further expands the original damage or causes other damages. It is obvious that there is no legal causal relationship between the damage caused by these two situations and the original damage behavior. The original perpetrator shall not be liable for compensation. Otherwise, it will go against the purpose of compensation for damages under the Law of Tort.

（2） The relative predictability of medical treatment

Diseases that require further treatment have a relatively predictable possibility or degree of cure based on current medical level, which means they have relative predictability. With the continuous progress and development of medicine and biological sciences. For example, the discovery and application of human genetic maps, the promotion of nanomaterials and technologies, and so on, humans are increasingly likely to foresee the degree of cure for a certain disease over a relatively short period of time. Minor injuries such as comminuted fractures may require internal fixation and removal surgery after six months or one year of healing at the end of postoperative treatment. For special cases such as nuclear radiation damage, the victim's physical and mental health will be tormented for a lifetime, and regular medical examinations are required every year. These are generally foreseeable, and obviously, corresponding treatment is necessary.

However, some treatments may occur and are currently unpredictable. For example, recurrence of old diseases, intrinsic pathological changes in bodily functions, and so on. For diseases for which medical science cannot predict the possibility of cure at present, it is necessary to clarify the boundary of a foreseeable time. Time is a philosophical concept with relative finiteness and absolute infinity. The author believes that in the legal issue of continuing treatment compensation for personal injury, these two attributes should also be reflected, and the former should be emphasized. On the one hand, as long as the continued treatment is caused by damage, the responsible party should bear absolute compensation responsibility. For example, for the "vegetative person" caused by damage, although medicine cannot restore the patient to a normal state and can only maintain their life, once medicine develops to the point where they can be cured and restored to a normal state in the future, the final medical expenses should clearly be borne by the responsible party. On the other hand, the development of medicine is also relatively predictable. Generally speaking, personal injury cannot be completely restored to the state before the injury, but can only be relatively restored. Therefore, unrealistic and unrealistic treatment requirements for the injured and their families cannot be blindly supported without analysis. In summary, it is necessary to not only safeguard the legitimate demands of the victim as much as possible, but also respect science and reality.

（3） Meet the necessities of life and work

Life and work are fundamental rights for people to survive. Disabled victims of personal injury often suffer from various defects after being cured, such as facial scars, facial features, and limb defects, which directly affect their lives and work, causing pain and inconvenience to the victim's spirit and society, and leaving an indelible haze in their lives. Necessary surgical and medical techniques such as breast augmentation, nose augmentation, scar removal, etc. in cosmetic surgery are used to improve their health It is obviously necessary to make up for these external defects. Therefore, when determining the continuation of treatment, priority must be given to the above two needs.

Of course, some treatments can achieve satisfactory results in one go, while others require multiple treatments. As discussed earlier, personal injury cannot be absolutely, completely, or completely restored to its original state before the injury, but can only be relatively restored. Therefore, the victim or their relatives can only request continued treatment that is necessary for life, work, and social interaction, and cannot undergo multiple treatments for absolute recovery requirements.

（4） Judging the necessity of continuing treatment from a measurement perspective

The homomorphic revenge of primitive society has long been abandoned with the progress of human civilization, and replaced by the establishment of modern compensation systems. In a certain sense, personal injury is a damage to human value. Therefore, there is clearly a question of value measurement as to whether further treatment is needed, what kind of treatment to be given, and to what extent of cure.

One is the aesthetic standards of the human body.

The author believes that when determining whether further treatment is necessary, what kind of treatment is required, and to what extent the cure is achieved, it should be measured by the general aesthetic standards of normal people, rather than based on the one-sided demands of both parties involved in the dispute.

The second is the comparison of therapeutic value.

If the original defect significantly shrinks or even disappears after treatment, then such treatment is necessary. On the contrary, if the original defect continues to expand or has no significant effect, then this treatment is not necessary. Among them, human organ transplantation should also consider functions and effects. For example, if a finger defect is caused by damage, the toe can be surgically transplanted onto the finger; Facial disfigurement involves transplanting skin tissue from other parts of the body to the face through surgery. From the perspective of value comparison, these treatments are clearly necessary.

In addition, the most typical type of maintenance therapy is the previously mentioned "vegetative person". Obviously, maintenance treatment for "vegetative individuals" is both in accordance with legal provisions and the principle of respecting the value of human life, and this type of treatment is undoubtedly necessary. It should be noted that for the rehabilitation treatment of human injuries, such as physical therapy and massage, the cost is currently quite high, and many of them are of no therapeutic value. Strict restrictions should be imposed in judicial practice and should not be considered as compensation in general. Of course, if the injury can only be treated in this way, it should be a different matter.

The third is the scientific evaluation of the degree of cure.

When determining whether further treatment is necessary, it is also necessary to pay attention to consulting and referring to authoritative agencies such as the original treatment hospital, county-level or above hospitals, medical research institutions, and forensic departments that comply with legal procedures for consultation and appraisal opinions. The original treatment hospital is familiar with the victim's injury and treatment situation, and often can maintain the continuity of treatment in a timely and accurate manner. Hospitals at or above the county level have sufficient technical capabilities and complete disease departments. Relatively speaking, their opinions can serve as a reference for whether to continue treatment. Medical research institutions are familiar with the development status and trends of medical science, and have relatively high authority. Forensic identification is based on the theory and technology of forensic medicine, using scientific detection methods to make scientific identification conclusions on the mechanism of human injury, which has a certain degree of scientific significance. In short, these appraisal conclusions or advisory opinions have relatively high scientific, authoritative, and impartial nature. As litigation evidence, comprehensive consideration, correct authentication, and use must be paid to in trial practice.

2、 Scope and standards of continuing treatment costs

In general, the cost of continuing treatment in compensation for personal injury refers to the corresponding expenses actually incurred or likely to occur during the process of continuing treatment. When determining the composition of expenses, strict examination must be conducted and fair judgments must be made based on the principles of fairness and reasonableness. We should not only prevent blind expansion and transfer unreasonable costs to the perpetrator, but also prevent one-sided reduction and increase unnecessary burdens on the victim, causing the legitimate rights and interests of the victim to be harmed again.

Firstly, it must be the cost of treatment for the disease caused by damage, which limits the scope of treatment. The causal relationship between damage and continued treatment has already been discussed earlier. Obviously, only when the perpetrator's harmful behavior inevitably leads to the continuation of treatment, can the relevant expenses incurred thereby be borne by the perpetrator for compensation. There is a viewpoint that the disease that continues to be treated should be caused by trauma, thus excluding the disease caused by internal injury, which is clearly a one-sided and erroneous understanding of the legal causal relationship.

Secondly, the cost of continuing treatment must be actual or possible during the process of continuing treatment, which is the time limit of this cost. Continuing treatment may be one-time, such as removal of internal fixation. Some are repeated multiple times, such as severe facial plastic surgery and uninterrupted follow-up treatment for core radiation damage. Some are explicit and necessary treatments. Some are implicit and may require treatment, such as femoral head necrosis, which is common in traffic accidents. In cases where chronic infection symptoms still exist, it is still necessary to strengthen treatment observation for about 1-2 years and decide whether to undergo artificial joint replacement surgery based on the recovery situation.

Once again, it must be limited to the relevant costs required for continued treatment, which is a limitation of the scope of this cost composition. Continuing treatment is different from treatment before the end of the first medical treatment, and the amount of fees required cannot be equal. In terms of compensation scope, the compensation scope for continuing treatment costs is obviously smaller than the compensation scope before the case is closed. When settling a dispute over personal injury compensation, it is generally necessary to consider the medical expenses, nursing expenses, work delay expenses, hospitalization meal expenses, etc. that have already occurred. The compensation for continuing treatment expenses should be limited to the necessary medical expenses and other necessary expenses arising from continuing treatment.

There is a viewpoint that the cost of continuing treatment should be limited to medical expenses and should not consider compensation for other expenses. The author believes that this viewpoint is clearly wrong in theory and harmful in practice. In fact, continuing treatment is a continuation of previous treatment, indicating that the underlying damage is still ongoing. Therefore, in addition to medical expenses, the compensation for continuing treatment expenses should also include necessary nursing expenses, work delay expenses, transportation expenses, and accommodation expenses arising from continuing treatment. Among them, nursing expenses refer to the expenses incurred by the victim in the process of continuing treatment that require the care of others. They can refer to the opinions of the hospital and be evaluated by the relevant disability assessment department based on the nursing level (generally divided into full nursing dependency, majority nursing dependency, and partial nursing dependency based on five conditions: eating, turning over, defecation, dressing and washing, and self movement), and are calculated at 50% of the per capita annual net income of the local labor force Calculated at 40% and 30%, the maximum number of nursing staff is limited to one person. Lost work expenses refer to the reduced income of victims who do need to leave their place of residence for treatment in other places (including the county where they reside), but do not reach the level of disability 10 or above, as well as compensation personnel who do need to go with them due to lost work. They are generally calculated based on the annual net income per capita of the local labor force. As for victims with a disability level of 10 or above, as the disability living allowance has already been calculated and paid according to the disability level at the time of conclusion of the case, it should not be repeated to calculate the cost of work delay during the continued treatment process. Transportation and accommodation fees refer to the necessary normal round-trip transportation and accommodation fees for the victim and accompanying personnel who need to travel to other places (including the county where the victim resides) for further treatment if they do need to leave their place of residence.

In addition, two issues should be taken into account when determining the cost of continuing treatment in general personal injury compensation. One is that the determination of expenses can be based on the consent of the responsible party, comprehensive consideration, and discretion, appropriately higher or lower than the general standard. Especially when it is still difficult to meet the cost of continuing treatment according to relevant standards, judges should actively exercise their discretion to ensure the legitimate rights and interests of victims. The second reason is that due to long-term contact between doctors and patients, medical staff often develop a mentality of sympathy for the injured or accept unfair benefits, which leads to bias in providing advice on treatment costs. Therefore, special attention must be paid to the examination, cross examination, and authentication of evidence in this regard.

3、 Payment method for continuing treatment fees

The payment of compensation for personal injury and treatment expenses should follow the following principles: firstly, the principle of ensuring the treatment of the injured (especially those without fault or responsibility). This is based on the fact that the right to life and health is an important aspect of personal rights and should be particularly respected. The second is to consider the actual situation of both parties, especially the economic payment ability of the perpetrator. The third principle is to respect the wishes of both parties.

In trial practice, there are several main payment methods for continuing treatment fees:

Firstly, considering all factors, when the case is closed, it will be handled as one case, that is, the payment will be resolved in one case at a time. This approach is beneficial for both parties and can eliminate the legal relationship of compensation as soon as possible, which is not conducive to maintaining normal life and civil circulation order. When applying this method, attention should be paid to mastering several conditions.

Firstly, the victim has a request when suing, which is a prerequisite. One of the basic principles of civil litigation is that no action is taken, and the people's court only considers the payment of the cost when the victim requests compensation for the continued treatment costs from the perpetrator.

Secondly, this method is generally suitable for situations where the continued treatment of diseases is relatively obvious and simple, and the cost is relatively small and easy to estimate. For patients with complex conditions that require repeated treatment, this payment method should not be used.

Once again, the responsible party has better economic capabilities and can indeed make a one-time payment.

In addition, when applying the one-time payment method, attention must also be paid to the impact of interest rates and rising prices on the amount of fees, as well as the fair difference between one-time payment and installment payment. In judicial practice, it is often easy to overlook this.

Secondly, installment payment. It refers to the possibility of mediating or ordering the responsible party to pay the continuing treatment fees in installments at the conclusion of the case, or paying the first installment of fees in advance, with subsequent fees paid within a certain period in the future. This approach has certain constraints on both parties and is relatively reasonable.

Thirdly, based on the actual amount incurred in the future, it will not be dealt with in this case. This approach seems to be the most reasonable and fair principle, after all, continuing treatment is a prediction of the future situation, not yet an actual occurrence, and the evaluation of the required costs cannot be 100% accurate.

The application of this method also has certain drawbacks, often damaging the interests of one party, especially the injured party. A positive and appropriate handling method should be to mediate or order the responsible party to pay the actual expenses incurred when the victim needs to continue treatment in the future, and clearly state them in the judgment documents, in order to avoid the burden of litigation caused by the parties involved.

Fourthly, order the perpetrator to hand over the assessed continuing treatment costs to the people's court for temporary storage, so that the victim can receive treatment in a timely manner when actual costs are incurred in the future. Because once the perpetrator adopts the method of escape or debt evasion after the case is closed, or the enterprise goes bankrupt, it will be difficult to realize the victim's right to continue treatment and compensation, which is extremely unfair to the victim. At the same time, this approach is also fair to the perpetrator. The cost of continuing treatment is conditional on the survival of the victim. After all, human life is limited, and once the victim dies, they should continue to enjoy this cost. At this point, the court that saved the fee should refund the remaining amount to the perpetrator. This method actually has the nature of guarantee and should be boldly practiced and widely applied. However, it is regrettable that in judicial practice, this approach has not been given the attention and application it deserves.

In summary, the author believes that the various payment methods mentioned above must be weighed and considered comprehensively based on the specific circumstances of the case, such as the difficulty coefficient of continuing treatment, the degree of cure, the amount of fees, and the payment ability of the parties involved. We should not only protect the legitimate rights and interests of both parties equally, but also follow the principle of economic litigation, try to reduce the burden of litigation on the parties, improve the efficiency of trial work, and achieve judicial fairness with the lowest trial cost. In practice, some people unilaterally advocate that only one method is applicable and exclude the application of other methods, which is inappropriate or even wrong.

Reference:

1994.6 People's Court Press Zhuang Hongsheng and Liu Zhi's new book "Guidelines for Compensation for Appraisal of Personal Disability"