祸起交通事故，救治医院却赔巨款

浙江利群律师事务所  周海龙

       2010年5月8日晚发生在台州市椒江区工人西路葭东路口的一起交通事故，造成受害人黄某五级伤残，法院确认其医疗费、误工费、护理费、残疾赔偿金、残疾扶助器具费、精神抚慰金等共计65万余元，并判决救治医院台州某医院承担该款的60％、交通肇事方李某承担该款的35％、受害人黄某本人承担5%。

      目前，医院的赔偿金已支付完毕；肇事方还未支付，受害人正申请法院对其强制执行。在交通事故人身损害赔偿纠纷中，肇事方赔偿受害人的损失，这是情理之中的事情。可是，本案中救治受害人的台州某医院为何成了被告，并被判决赔付巨款呢？

飞来横祸

      这天，黄某在台州市椒江区工人西路葭东路口自北向南横过道路时，被李某驾驶浙J5H072普通二轮摩托车撞倒。后经台州市公安局交通警察支队椒江大队认定，李某负主要责任，黄某负次要责任。

      事后，黄某被立即送到台州某医院门诊进行清创缝合，经诊断为“腰1椎体压缩性骨折、右侧骨外侧平台骨折”，当日住院。同年5月14日台州某医院在硬膜外麻醉下对原告行右胫骨平台骨折切复内固定术。原告于5月15日下午出现恶心呕吐，血压偏低，胸闷不适，右小腿肿胀明显，疼痛难受，台州某医院给予肌注盐酸桂嗪针100mg缓解疼痛。5月16日凌晨5时原告右小腿疼痛明显，台州某医院肌注度冷丁75mg无明显好转，黄某右小腿皮肤少许黑紫，切口有少许血性渗出，台州某医院误诊右小腿筋膜室综合症。5月16日下午黄某出现恶心感，血压偏低，右小腿皮下瘀斑增多，术口上缘有血性渗出，台州某医院内科会诊后又误诊深静脉栓塞或骨筋膜间室综合症。于5月16日晚18时转院至台州医院，诊断为“右侧胫骨平台骨折术后感染、气性坏疽、感染性休克、败血症、肝肾功能不全”，行“右侧胫骨平台骨折术后感染切开减压、引流+坏死组织清除术”。同年5月17日行“右侧大腿中下段开放性截肢术”，于同年6月20日出院。2010年11月16日，某区卫生局向台州市医学会提出鉴定申请，台州市医学会于2011年2月23日作出台州医鉴（2010）0083号《医疗事故技术鉴定书》，鉴定结论为构成三级丙等医疗事故，医方对患者右下肢截肢承担轻微责任。2011年3月2日经台州学院司法鉴定所台州学院司鉴所（2011）临鉴字第0181号司法鉴定意见书鉴定，结论为黄某损伤致右下肢膝关节以上缺失构成五级伤残。

对簿公堂

      黄某治疗终结后，委托浙江利群律师事务所周海龙律师全权代理该侵权责任纠纷，将二被告台州某医院、李某告到法院，请求法院判决二被告赔偿其各项损失78万余元，并承担本案诉讼费用。

      法院受理案件后，经原、被告当事人共同申请，法院依法委托浙江绿城医院司法鉴定所进行司法鉴定，该司法鉴定所于2011年11月17日作出浙绿医司[2011]临鉴字第777号法医临床鉴定意见书认定：黄某目前遗留右下肢被截肢、构成道路交通五级伤残的后果与台州某医院医疗过失行为存在因果关系。即医疗过失行为占主要责任，车祸外伤和被鉴定人自身疾病因素占次要责任。

      原告黄某诉请：原告因被告李某的交通肇事受伤入住被告台州某医院治疗，被告被告台州某医院作为国家二级甲等医院，在对原告治疗过程中，未尽到应尽的义务，骨外手术后感染气性坏疽，其医疗行为与原告的损害结果之间有因果关系，根据两被告过错的程度及致损的原因力程度，被告台州某医院承担主要责任，被告李某承担次要责任。

被告台州某医院辩称：本案是一因多果的侵权责任纠纷，对于原告的损害后果，是由于多种原因造成的，包括交通事故造成原告胫骨平台骨折；原告自身患有糖尿病，免疫力不如常人；被告台州某医院手术后诊断行为等原因。鉴于原告感染气性坏疽杆菌的特殊性，且该病情属于一种严重急性特异性感染，进展迅速，且在临床上较为罕见，一般的临床医生往往不能在第一时间作出明确诊断。对于损害后果，被告台州某医院仅负将要责任。

被告李某辩称：发生交通事故，原告负次要责任，应首先承担全部损失的20%。原告目前遗留的右下肢被截肢，构成道路交通事故五级伤残的的后果与被告台州某医院医疗过失行为存在因果关系，医疗过失行为占主要责任、车祸外伤和被鉴定人自身疾病因素占次要责任。因此对于原告诉请的残疾赔偿金。残疾辅助器具及维护费都应该由被告台州某医院来承担，原告其余损失，医疗过失行为应承担90%责任，车祸外伤和被鉴定人自身疾病因素应承担10%责任。

责任六四

      椒江区人民法院经审理认为：被告李某驾驶浙J5H072普通二轮摩托车与行人原告黄某发生碰撞，造成原告黄某受伤，被告李某应负此交通事故的主要责任，原告黄某负次要责任；原告黄某因交通事故造成椎体及右胫骨平台骨折，右小腿深层创伤等，因并发气性坏疽，日前遗留下肢被截肢，构成交通事故五级伤残的后果与被告台州某医院的医疗过失行为存在因果关系，被告台州某医院的医疗过失行为占主要责任，原告黄某车祸外伤和其自身疾病因素占次要责任。因此，对于原告黄某的的合理损失，被告台州某医院承担60%的责任；剩余的40%中，原告黄某因自身疾病因素自行承担5%，车祸外伤因素为35%。鉴于被告李某驾驶未投保交强险的摩托车发生交通事故，被告李某应对原告黄某合理损失中35%在交强险责任限额内全额赔偿，并对原告黄某超过交强险责任限额的其余合理损失承担80%的赔偿责任。

律师评析

代理此案的浙江利群律师事务所周海龙律师进行了评析。

救治医院存在两个方面的过失：

       一、对受害者黄某前期治疗中存在过失

      因气性坏疽是一种以肌肉组织坏死为特征的急性特异性严重感染疾病，由“梭状芽孢杆菌”引起，该菌属厌氧菌（在缺氧环境易生长繁殖），广泛存在于泥土和人畜粪便中，所以易进入受伤人体创口。受害人黄某因车祸致“右小腿远端外侧见3.0cm弧形创口、深达深筋膜”，根据其损伤环境及创口形态，存在感染气性坏疽细菌物客观条件。作为医疗机构，对疑有气性坏疽的伤口，有效预防和避免感染扩散的最可靠方法是应尽早（在伤后6小时内）彻底清创、用3%过氧化氢（双氧水）或1：1000高锰酸钾等溶液冲洗、湿敷伤口，对已缝合的伤口，也应将缝线拆去，敞开伤口、以利氧气进入。但台州某医院在当日急诊时有“双氧水、碘剂冲洗创口”记录，但之后却予以“缝合创口”6天后在行“内固定”手术时，有“生理盐水反复冲洗术口”记录，但未见使用双氧水冲洗创口记录，之后又“依次缝合皮肤”、未敞开创口。以上处理，可使创内缺氧、或因其他细菌繁殖消耗氧气而造成了缺氧环境，有利于气性坏疽杆菌生长繁殖。由此可见，台州某医院因前期治疗行为未有效预防或控制气性坏疽杆菌繁殖扩散、故存在过失。

      二、发生病情后早期诊断过失

       2010年5月14日台州某医院行“内固定”手术后，伤口出现不寻常的“剧痛”、局部肿胀明显伴青紫、周围皮肤有“捻发音”，一般情况差，出现感染性休克症状。台州某医院属国家二级甲等医院，承担区内的常见病、多发病和较疑难病症诊治任务。特别是2008年6月2日，卫生部办公厅关于印发《梭菌性肌坏死（气性坏疽）诊疗意见》的通知，下发梭菌性肌坏死（气性坏疽）诊疗意见，对其病理生理、临床表现、诊断、标本采集和运送、鉴别诊断、预防、治疗等进行详细说明。但台州某医院早期诊断意识没有，以至于使病情快速发展到严重威胁生命，最终导致受害人黄某右下肢被截肢的后果。

      根据最高人民法院《关于审理人身损害赔偿案件适用法律若干问题的解释》第3条规定，二人以上共同故意或者共同过失致人损害，或者虽无共同故意、共同过失，但其侵害行为直接结合发生同一损害后果的，构成共同侵权，应当依照《民法通则》第130条规定承担连带责任。二人以上没有共同故意或者共同过失，但其分别实施的数个行为间接结合发生同一损害后果的，应当根据过失大小或者原因力比例各自承担相应的赔偿责任。据此，救治医院与交通肇事方在既没有共同故意也没有共同过失的情况下，他们的行为间接结合导致受害人右下肢缺失构成五级伤残，救治医院与交通肇事方应当根据他们各自的过失大小或者原因力比例各自承担相应的赔偿责任。浙江省高级人民法院《关于审理医疗纠纷案件若干问题的意见（试行）》第五条规定，患者因交通事故或其他伤害而就医后，患者一方以医疗机构的医疗行为有过错，并使患者遭受损害为由请求赔偿的，人民法院一般应将医疗机构和其他侵权人作为共同被告；各被告依法承担相应的赔偿责任。

Causing a traffic accident, but incurring huge losses in hospital treatment

Zhejiang Liqun Law Firm Zhou Hailong

On the evening of May 8, 2010, a traffic accident occurred at the Jiadong intersection of Gongren West Road, Jiaojiang District, Taizhou City, which caused the victim Huang to be disabled at the fifth level. The court confirmed that his medical expenses, lost time fees, nursing fees, disability compensation, disability aid equipment fees, and mental comfort payments totaled more than 650000 yuan, and decided that a hospital in Taizhou should bear 60% of the amount and a traffic accident party, Li, should bear 35% of the amount The victim Huang himself bears 5%.

At present, the hospital's compensation has been paid; The perpetrator has not yet made the payment, and the victim is applying to the court for compulsory execution. In disputes over compensation for personal injury in traffic accidents, it is reasonable for the party causing the accident to compensate the victim for their losses. However, why did a certain hospital in Taizhou, which treated the victim in this case, become a defendant and be sentenced to pay a huge amount of compensation?

A sudden disaster

On that day, when crossing the road from north to south at the Jiadong intersection of Gongren West Road, Jiaojiang District, Taizhou City, Mr. Huang was knocked down by Mr. Li driving a Zhejiang J5H072 ordinary two wheeled motorcycle. Later, Jiaojiang Brigade of Traffic police Detachment of Taizhou Public Security Bureau determined that Li was primarily responsible and Huang was secondary.

Later, Mr. Huang was immediately sent to a hospital in Taizhou for debridement and suture. After diagnosis, he was diagnosed as "Compressibility fracture of L1 vertebral body and fracture of the lateral platform of the right bone", and was hospitalized that day. On May 14 of the same year, a certain hospital in Taizhou performed a right tibial plateau fracture reduction and internal fixation surgery on the plaintiff under epidural anesthesia. On the afternoon of May 15th, the plaintiff experienced nausea and vomiting, low blood pressure, chest tightness and discomfort, obvious swelling in the right lower leg, and uncomfortable pain. A certain hospital in Taizhou administered intramuscular injection of 100mg of chlorpromazine hydrochloride to alleviate the pain. At 5am on May 16th, the plaintiff had obvious pain in his right calf. However, a hospital in Taizhou did not show any significant improvement after intramuscular injection of 75mg of dolantin. The skin of Huang's right calf was slightly black and purple, and there was a slight bloody exudation from the incision. A hospital in Taizhou was misdiagnosed as right calf compartment syndrome. On the afternoon of May 16, Mr. Huang developed nausea, low blood pressure, increased subcutaneous ecchymosis in the right calf, and bloody exudation at the upper edge of the surgical opening. After a medical consultation in a hospital in Taizhou, he was misdiagnosed as Deep vein embolism or osteofascial compartment syndrome. On the evening of May 16th at 18:00, he was transferred to Taizhou Hospital and diagnosed with "postoperative infection, gas gangrene, septic shock, sepsis, and liver and kidney dysfunction of the right tibial plateau fracture". He underwent "postoperative infection incision decompression, drainage, and necrotic tissue removal surgery for the right tibial plateau fracture". On May 17 of the same year, he underwent an open amputation of the middle and lower segments of the right thigh and was discharged on June 20 of the same year. On November 16, 2010, a district health bureau submitted an appraisal application to the Taizhou Medical Association. On February 23, 2011, the Taizhou Medical Association issued the Taizhou Medical Jian (2010) No. 0083 "Technical Appraisal Certificate for Medical Accidents". The appraisal conclusion was that it constituted a Class III and Class C medical accident, and the medical party bears slight responsibility for the patient's right lower limb amputation. On March 2, 2011, it was identified by the Judicial Expertise Institute of Taizhou University (Taizhou University) SJS (2011) LJZ No. 0181 Judicial Expertise Opinion, and the conclusion was that the loss above the knee joint of the right lower limb caused by Huang's injury constituted a level 5 disability.

Litigation in court

After the end of Huang's treatment, Zhou Hailong, a lawyer from Zhejiang Liqun Law Firm, was entrusted to fully represent the tort liability dispute, and the two defendants, a hospital in Taizhou and Li, were sued to the court, requesting the court to adjudge the two defendants to compensate them for various losses of more than 780000 yuan and bear the litigation costs of the case.

After the court accepted the case, upon the joint application of the plaintiff and defendant, the court entrusted the Judicial Appraisal Institute of Zhejiang Greentown Hospital to conduct judicial appraisal in accordance with the law. On November 17, 2011, the Judicial Appraisal Institute issued a Forensic Clinical Appraisal Opinion No. 777 [2011] of Zhejiang Greentown Hospital, which determined that there is a causal relationship between the consequences of Huang's left right lower limb being amputated, which constitutes a fifth level road traffic disability, and the medical negligence of a certain hospital in Taizhou. Medical negligence is the main responsibility, while car accidents, injuries, and the individual's own disease factors are secondary responsibilities.

Plaintiff Huang filed a lawsuit: The plaintiff was injured in a traffic accident caused by the defendant Li and was admitted to a hospital in Taizhou for treatment. As a national second class A hospital, the defendant Taizhou hospital did not fulfill its due obligations in treating the plaintiff and contracted gas gangrene after an external bone surgery. There is a causal relationship between their medical behavior and the plaintiff's damage results. Based on the degree of fault of the two defendants and the degree of cause and effect of the damage, The defendant, a hospital in Taizhou, bears the main responsibility, while the defendant, Li, bears secondary responsibility.

The defendant, a certain hospital in Taizhou, argues that this case is a multi outcome tort liability dispute, and the damages to the plaintiff are caused by various reasons, including a traffic accident causing the plaintiff's tibial plateau fracture; The plaintiff himself suffers from diabetes, and his immunity is inferior to that of ordinary people; The defendant's diagnosis behavior and other reasons after surgery at a certain hospital in Taizhou. Given the unique nature of the plaintiff's infection with gas gangrene bacteria, and the fact that this condition is a severe acute specific infection that progresses rapidly and is relatively rare in clinical practice, ordinary clinical doctors often cannot make a clear diagnosis in the first place. For the consequences of the damage, the defendant, a certain hospital in Taizhou, is only responsible for the immediate consequences.

Defendant Li argued that in the event of a traffic accident, the plaintiff bears secondary responsibility and should first bear 20% of the total loss. The plaintiff's current left lower limb has been amputated, which constitutes a fifth degree disability in a road traffic accident. The consequences are related to the defendant's medical negligence at a certain hospital in Taizhou, with medical negligence being the main responsibility, while traffic accidents and injuries, as well as the individual's own disease factors, account for secondary responsibility. Therefore, regarding the disability compensation originally claimed. Disability assistive devices and maintenance costs should be borne by a certain hospital in Taizhou, the defendant. The plaintiff should bear 90% of the responsibility for other losses, medical negligence, and 10% of the responsibility for car accidents, injuries, and the identified person's own disease factors.

Responsibility 64

The People's Court of Jiaojiang District held after hearing that: the defendant Li drove the Zhejiang J5H072 ordinary two wheeled motorcycle and collided with the pedestrian plaintiff Huang, causing the plaintiff Huang to be injured. The defendant Li should bear the main responsibility for the traffic accident, and the plaintiff Huang should bear the secondary responsibility; The plaintiff Huang suffered from vertebral and right tibial plateau fractures and deep trauma to his right calf due to a traffic accident. Due to the complications of gas gangrene, he recently left his lower limb amputated, which constitutes a level 5 disability in a traffic accident. There is a causal relationship between the consequences and the medical negligence of the defendant Taizhou hospital. The medical negligence of the defendant Taizhou hospital is the main responsibility, while the plaintiff Huang's accident injury and his own disease factors are secondary responsibilities. Therefore, for the reasonable losses suffered by the plaintiff Huang, the defendant Taizhou Hospital bears 60% of the responsibility; Among the remaining 40%, the plaintiff Huang bears 5% of the burden due to his own illness, and the accident injury factor is 35%. Considering that the defendant Li caused a traffic accident while driving a motorcycle that was not covered by compulsory traffic insurance, the defendant Li should compensate 35% of the plaintiff Huang's reasonable losses in full within the compulsory traffic insurance liability limit, and bear 80% of the plaintiff Huang's other reasonable losses exceeding the compulsory traffic insurance liability limit.

Lawyer Evaluation

Lawyer Zhou Hailong from Zhejiang Liqun Law Firm, who represented this case, conducted an analysis.

There are two aspects of negligence in treating hospitals:

1、 There was a mistake in the early treatment of the victim Huang

Due to the fact that gas gangrene is an acute, specific, and severe infectious disease characterized by muscle tissue necrosis, it is caused by the "Clostridium" bacteria, which are anaerobic bacteria (easy to grow and reproduce in hypoxic environments) and widely exist in soil and human and animal feces, making it easy to enter injured human wounds. The victim Huang was injured in a car accident, resulting in a 3.0cm curved wound on the outer side of the distal right calf, reaching as deep as the deep fascia. Based on the injury environment and wound morphology, there are objective conditions for infection with gas gangrene bacteria. As a medical institution, the most reliable way to effectively prevent and avoid the spread of infection for wounds suspected of gas gangrene is to thoroughly debridement as soon as possible (within 6 hours after the injury), wash and wet compress the wound with 3% hydrogen peroxide (hydrogen peroxide) or 1:1000 Potassium permanganate and other solutions, and remove the suture for the stitched wound to open the wound to facilitate oxygen entry. However, a certain hospital in Taizhou had a record of "flushing wounds with hydrogen peroxide and iodine solution" during the emergency department on the same day, but after 6 days of "suturing wounds" during the "internal fixation" surgery, there was a record of "repeatedly flushing wounds with physiological saline", but no record of using hydrogen peroxide to flush wounds was found. Afterwards, the skin was "sutured in sequence" and the wounds were not opened. The above treatment can cause hypoxia within the wound or create a hypoxic environment due to the consumption of oxygen by other bacteria, which is conducive to the growth and reproduction of gas gangrene bacteria. From this, it can be seen that a certain hospital in Taizhou was negligent due to ineffective prevention or control of the proliferation and spread of gas gangrene bacteria during early treatment.

2、 Early diagnosis error after the occurrence of illness

On May 14, 2010, after undergoing internal fixation surgery at a certain hospital in Taizhou, the wound showed unusual "severe pain", obvious local swelling with cyanosis, and "twisted sounds" on the surrounding skin. The general condition was poor, and symptoms of septic shock occurred. A certain hospital in Taizhou is a national second class A hospital, responsible for the diagnosis and treatment of common, frequently occurring, and difficult diseases in the area. Especially on June 2, 2008, the General Office of the Ministry of Health issued a notice on the diagnosis and treatment of Clostridium muscular necrosis (gas gangrene), issuing detailed explanations on its pathophysiology, clinical manifestations, diagnosis, specimen collection and transportation, differential diagnosis, prevention, and treatment. However, a certain hospital in Taizhou lacked early diagnostic awareness, which led to the rapid development of the condition and serious life-threatening consequences, ultimately leading to the amputation of the victim Huang's right lower limb.

According to Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Personal Injury Compensation, if two or more people jointly intentionally or negligently cause harm to others, or if their infringing acts directly combine to cause the same damage consequence, they constitute joint infringement and shall bear joint and several liability in accordance with Article 130 of the General Principles of the Civil Law. If two or more people have no joint intention or fault, but their respective actions have indirectly combined to cause the same damage consequence, they shall bear corresponding compensation responsibilities based on the magnitude of the fault or the proportion of the causal force. Based on this, in the absence of joint intent or fault, the hospital and the party causing the traffic accident indirectly combined their actions, resulting in the loss of the victim's right lower limb, which constitutes a fifth degree disability. The hospital and the party causing the traffic accident should bear corresponding compensation responsibilities based on their respective fault size or proportion of the original cause. According to Article 5 of the Opinions of the High people's court of Zhejiang Province on Several Issues Concerning the Trial of Medical Dispute Cases (Trial), if a patient goes to hospital due to a traffic accident or other injuries, and one of the patients claims compensation on the ground that the medical behavior of the medical institution is wrong and the patient suffers damage, the people's court should generally regard the medical institution and other infringers as co defendants; Each defendant shall bear corresponding compensation responsibilities in accordance with the law.