作者：佚名     2016-12-27

——浅析人身损害赔偿案中有关后续治疗费给付条件及计算标准的法律问题 （李钟年）

[内容提要] 我曾办过大量的有关人身损害赔偿案件，包括一般雇工人身损害、交通事故损害、劳动工伤损害及伤害赔偿、特殊职业侵权（医患纠纷）赔偿等，尽管此类案件适用法条，诸如《民法通则》第119条之类比较单一，但在实际操作中，就有关赔偿费用的支付问题，尤其是因残疾或一时无法治愈之后续治疗费问题，较难掌握，因此，我认为有必要对此问题作专门的阐述，共求共识。

[关键词] 赔偿 续治费 条件

人身损害往往存在医疗终结或者结案后仍然需要继续进行治疗的情况，对此，目前的有关法规只是对于责任方应当支付继续治疗必需的费用作了原则性的规定。无疑，加强对这一问题的研究，将有助于我国侵权损害赔偿法律制度的健全和完善。本文拟就此对一般人身损害赔偿中的继续治疗及其费用作初步探讨。

一、续治疗的条件

受害人在遭受人身伤害之后，经过医疗终结，往往留下伤残后遗症，造成人生的诸多痛苦，需要诸如后期拆除内固定钢板、钢钉手术、疤痕美容整形手术，后期理疗、康复等方面的治疗。但是这些治疗有些是必要的、合理的，有些则并非必需的，甚至是毫无价值的，有些则介于两者之间。

为此，笔者认为，在认定人身损害赔偿中的继续治疗的必要性时，必须注意如下几个方面。

（一）正确认定损害行为或者结果与继续治疗之间的因果关系

民事责任要件中的因果关系是指行为人的行为及其物件与损害事实之间所存在的内在的必然的联系。

人身损害经过一定的治疗后，治疗经终结，行为与结果之间的因果关系和赔偿关系本来已经锁定。但是，往往存在潜在的损害，需要继续进行治疗。例如：烫伤 治疗终结 留下脸部疤痕 择期继续进行美容整形。从中可见，烫伤虽然已经治疗终结，然而，烫伤与脸部美容整形之间仍然存在法律上的因果关系，显然，加害人必须对受害人后期的脸部美容整形承担民事赔偿责任。可见，人身损害赔偿中的继续治疗必须与损害行为存在法律上的因果关系。也就是说受害人继续治疗的民事赔偿责任。

考察人身损害赔偿中继续治疗的因果关系问题时，必须注意排除两种情况。其一是由于医护人员在诊疗护理过程中故意或者过失违反有关诊疗护理的规章制度和技术操作规程出现的医疗事故或者医疗意外，由此而造成的受害人人体组织器官操作或者缺失，功能障碍或者丧失，并由此而导致的继续治疗以及受害人对医疗护理的依赖。例如近年不断见诸报端的医生在手术中将器械材料等异物遗忘于病人的胸腔、腹腔、盆腔、颅内及深部组织；开错手术部位等等。其二是由于受害人自己的故意、过失或者无理拒绝接受医院检查治疗使原有损害进一步扩大或者造成其他的损害。很明显，这两种情况所造成的损害结果与原来的损害行为之间并不存在法律上的因果关系。均不应当由原加害人承担赔偿责任。否则，将有悖于侵权行为法损害赔偿的宗旨。

（二）医学治疗的相对可预知性

需继续治疗的疾病具有根据目前医学水平能够相对预知其治愈可能或者治愈程度，即具有相对可预知性。随着医学和生物科学的不断进步和发展。例如人类基因图谱的发现和应用，纳米材料和技术的推广等等，人类越来越可能预见到某一疾病在相对一段时间的治愈程度。轻微的如粉碎性骨折损害，医院在术后终结治疗时均会嘱半年或者一年愈合期满后行内固定折除术。特殊的如核辐射损伤，受害人的身心将终生受到折磨，每年需要进行定期的医疗复查。这些是一般情况下可以直接预见的，显然，相应的治疗是必要的。

但是，有些治疗则是可能发生，而目前无法预知的。例如旧病复发，身体机能内在性的病变等等。对于目前医学无法预知其治愈可能性的疾病，必须明确一个预见时间的界限问题。时间是一个哲学概念，具有相对的有限性和绝对的无限性。笔者认为，在人身损害继续治疗赔偿这一法律问题上，同样应当体现这两个属性，并且应当侧重于前者。一方面，只要是损害导致的继续治疗，就应当由责任方承担绝对的赔偿责任。例如损害造成的“植物人”，虽然目前医学无法将病人恢复到正常状态，只能维持其生命，但是，一旦将来医学发展到能够将其治愈，并且恢复到正常状态时，最终的医疗费用显然应当由责任方承担。另一方面，毕竟医学的发展也是相对的预知。一般而言，人身损害不可能绝对恢复到损害前的状态，只能是相对的恢复。因此，对于伤者及其家属提出不切实际的、不现实的治疗要求，不能不加分析的盲目支持。总而言之，应当既要尽可能维护受害人的合进合法的要求，同时，又要尊重科学和现实。

（三）符合生活和工作的必需

生活和工作是人们生存的基本权利。人身损害的伤残受害人往往由于身体受损，治愈后留下诸方面的缺陷，如脸部疤痕，五官、肢体的缺损等等，直接影响到生活和工作，给受害人的精神和社会带来痛苦和不便，给人生留下挥之不去的阴霾，通过必要的外科医疗技术例如美容整形中的隆胸、隆鼻、疤痕去除等等来娇正、弥补这些外在缺陷显然是必要的。因此，在认定继续治疗时必须优先考虑上述两个方面的需要。

当然，有些治疗一次就能达到较为满意的效果，而有些则需要多次治疗。前面已经论述，人身损害不可能绝对、完全、彻底的恢复到损害前的原有状态，只能是相对的恢复。因此，受害人或者其亲属只能提出符合生活、工作和社会交往之必需的继续治疗要求，而不能为绝对的恢复要求进行多次治疗。

（四）从衡量上判断继续治疗的必要性

原始社会的同态复仇早已随着人类文明的进步被摒弃，而代之以现代赔偿制度的建立。从一定意义上讲，人身损害对人的价值的一种毁损。因此，是否需要进行继续治疗、进行何种治疗以及治愈到何种程度，显然存在一个价值衡量的问题。

其一，是人体的美学标准。

笔者认为在确定是否需要进行继续治疗、进行何种治疗以及治愈到何种程度的时候，应当以普遍的正常人的一般美感标准来衡量，而不应该以纠纷双方当事人各自带有片面倾向性的要求作为依据。

其二，是治疗价值的比较。

如果经过治疗，原缺陷显著缩小甚至消失，那么这种治疗就是必需的。反之，原缺陷继续扩大或者没有显著效果，那么这种治疗就不是必要的。其中，人体器官移植还应当考虑功能和作用。例如，损害造成的手指缺损，通过手术将脚趾移植到手指上；脸部毁容，通过手术将身体其他部位的皮肤组织移植到脸部。从价值的比较来看，这些治疗显然是必要的。

此外，维持性治疗中最典型的当数前面提及的“植物人”。显然，对“植物人”的维持治疗既符合法律的规定，也符合尊重人的生命价值的原则，这种治疗无疑是必需的。应当注意的是，对于人体损伤的康复性治疗，譬如理疗、推拿，就目前情况而言，费用的支出相当高，而且，许多是毫无治疗价值的，审判实践中应当严格限制，一般不应作为赔偿考虑的对象。当然，如果损伤只能采取该种治疗方式的话，自应另当别论。

其三，是治愈程度的科学测评。

在确定是否必须继续治疗时，还必须注意咨询并参考原治疗医院、县级以上医院、医学科研机构和法医部门等权威机关符合法定程序的咨询鉴定意见。原治疗医院对受害人的伤情和治疗情况熟悉，往往较能及时准确的保持治疗的延续性。县级以上医院技术力量比较充足，各疾病科齐全，相对而言，其意见可以作为是否继续治疗的参考。医学科研机构则对医学科学的发展状况和趋势比较谙熟，具有相对较高的权威性。法医学鉴定则以法医学的理论与技术为基础，运用科学的检测手段，对人体损伤机理作出科学的鉴定结论，具有一定的科学性。总之，这些鉴定结论或者咨询意见相对而言具有较高的科学性、权威性和公正性，作为诉讼证据，审判实务中必须注意综合考量，正确认证和使用。

二、继续治疗费用的范围和标准

一般人身损害赔偿中的继续治疗费用原则上是指在继续治疗过程中实际发生或者可能发生的相应费用。在确定费用的构成时必须严格审查，根据公平合理的的原则进行公正裁判。既要防止盲目扩大，将不合理的费用转嫁由加害方承担，又要防止片面缩小，增加受害人不必要的负担，使受害人的合法权益再次受到损害。

首先，必须是因损害而引起疾病的治疗费用，这是对治疗范围的限制。前面已经论述了损害与继续治疗的因果关系。显然，只有在加害人损害行为必然的引起继续治疗时，由此而产生的有关费用才能由加害人承担赔偿责任。有一种观点认为继续治疗的疾病应当是外伤引起的，从而排除了内伤所致疾病，显然是对法律因果关系的片面、错误的理解。

其次，继续治疗费用必须是继续治疗过程中实际发生或者可能发生的，这是该项费用的时间限定性。继续治疗有些是一次性的，例如拆除内固定术。有些则反复多次的，例如脸部严重的多次整形，核心辐射损害的不间断复查治疗。有些是显性的、必然要进行的治疗。有些则是隐性的、可能要进行治疗，例如交通事故常见的股骨头坏死，在慢性感染病状仍然存在的情况下，仍然需要加强治疗观察1-2年左右，视恢复情况决定是否进行人工关节置换术。

再次，必须限于继续治疗所需的有关费用，这是该项费用构成范围的限制性。继续治疗有别于首次医疗终结前的治疗，所需费用数额自然不能等同。就赔偿范围而言，继续治疗费用的赔偿范围显然比结案前的赔偿范围要小。人身损害赔偿纠纷在结案时一般必须考虑到已经发生的医疗费、护理费、误工费、住院伙食费等等。而继续治疗费用的赔偿则应当仅限于确需的医疗费，以及由于继续治疗而衍生的其他有关的必需的费用。

有一种观点认为，继续治疗费用应当仅限于医疗费，而不应当考虑其他费用的赔偿。笔者认为这种观点显然在理论上是错误的，实践中是有害的。实际上，继续治疗是前期治疗的一种延续，表明内在的损害仍在继续进行之中。因此，继续治疗费用的赔偿除了医疗费之外，还应当包括由于继续治疗而衍生的有关的必需的护理费、误工费、交通费和住宿费。其中，护理费是指受害人在继续治疗过程中确实需要他人护理的支出，可参就诊医院的意见，并根据有关评残鉴定部门评定的护理等级（一般根据进食、翻身、大小便、穿衣及洗漱、自我移动等五项条件区分为全部护理依、大部分护理依赖和部分护理依赖），分别按照当地劳动力人均年纯收入的50%、40％、30％计算，护理人员最多只限于一人。误工费是指受害人在继续治疗过程中确实需要离开居住地，前往外地（包括居住地所在县城）治疗的情况下，未达到伤残10级以上的受害人，以及确需同往的赔护人员因误工而减少的收入，一般按照当地劳动力人均年纯收入计算。至于伤残10级以上的受害人，由于结案时已经按照伤残等级计付了残疾生活补助费，因此，不应当再重复计算继续治疗过程中的误工费。交通费和住宿费是指受害人在继续治疗过程中确实需要离开居住地，前往外地（包括居住地所在的县城）治疗的情况下，受害人和确需同往的陪护人员必要的正常往返交通费和住宿费。

此外，在确定一般人身损害赔偿中的继续治疗费用时还应当注意两个问题。一是费用的确定可在责任方同意的前提下或者综合考虑、自由裁量，适当高于或者低于普遍标准。尤其是在依照有关标准计算仍难于满足继续治疗费用时，法官更应积极行使自由裁量权，确保受害人的合法权益。二是由于医患之间长期接触，医护人员往往会产生一种同情伤者的心理，或者接受不正当的利益，因而在提供治疗费用的咨询意见时，带有偏向性。因此，必须特别重视对这方面证据的审查、质证和认证。

三、继续治疗费用的支付方式

一般人身损害赔偿治疗费用的支付应当遵循以下几个原则，一是保障伤者（尤其是无过错、无责任的伤者）治疗的原则。这是基于人的生命健康权是人身权的重要内容，应当受到特别的尊重。二是考虑双方当事人的实际情况，尤其是加害人的经济支付能力。三是尊重双方当事人的意愿的原则。

审判实践中，继续治疗费用的支付方式主要有如下几种：

第一、综合考虑，结案时一案处理，即在一个案件中一次性解决支付。这种方式对双方当事人均有好处，可以尽早消灭赔偿法律关系，不利于维护正常的生活和民事流转秩序。适用这种方式应当注意掌握几个条件。

首先，受害人起诉时有请求，这是前提条件。民事诉讼的基本原则之一是不告不理，只有在受害人诉请加害人赔偿继续治疗费用时，人民法院才予以考虑该项费用的支付问题。

其次，这种方式一般适用于继续治疗的疾病比较明显和简单，所需费用相对比较小而且比较容易估测的情况。而对于病情复杂，需经多次反复治疗的则不宜采用该支付方式。

再次，责任方经济能力较佳，确实能够一次性支付。

此外，适用一次性支付方式还必须注意考虑利率和物价上涨因素对费用数额的影响，以及一次性支付与分期支付的公允差额。对此，审判实践中往往极易疏忽。

第二、分期支付。指在确定必需继续进行多次治疗的前提下，可在结案时调解或者判令责任方分期支付继续治疗费用，或者先行支付第一期费用，以后的费用则在将来某一期限内给付完毕。这种方式对双方当事人均有一定的约束，相对而言是比较合理的。

第三、按照以后实际发生额为准，在本案中不作处理。这种方式似乎最合乎情理和公平原则，毕竟，继续治疗是对于将来情况的一种预测，还不是已经实际发生的，对所需费用的评测也不可能百分之百的准确。

适用这种方式也有一定的弊端，往往会损害某一方特别是受害方的利益。积极而妥当的处理方法应该是，在结案时调解或者判令责任方当受害人以后确需继续治疗时按照实际发生的费用直接给付，并清楚的载明于裁判文书当中，尽量避免当事人再行诉讼带来的诉累。

第四，责令加害方将评测后的继续治疗费用交由人民法院暂存，便于在将来实际发生费用时，受害人能够及时接受治疗。因为，一旦加害人在结案后采取逃逸或者逃避债务的方法，抑或企业倒闭破产，那么，受害人的继续治疗赔偿请求权就将难于实现，这对受害人而言是极不公平的。同时，这种方式对于加害人来说也是公平的。继续治疗费用是以受害人生存为条件的，人的生命毕竟是有限的，一旦受害人死亡，其就应再享受这笔费用。此时，保存该笔费用的法院就应当将剩余的款项退回给加害人。这种方式实际上具有担保的性质，应当大胆实践，广泛应用。但是，令人遗憾的是，在司法实践中，这种方式一直未能得到应有的重视和运用。

综上所述的几种支付方式，笔者认为，必须根据案件的具体情况，例如继续治疗的难度系数、治愈程度、费用的多寡、当事人的支付能力等等，权衡利弊，综合考虑。既要平等的保护双方当事人的合法权益，又要遵循经济诉讼的原则，尽量减轻当事人的诉累，提高审判工作效率，以最低的审判成本实现司法公正。实践中，有人片面主张只适用某一种方式而排斥其他方式的适用，这是不适当甚至是错误的。

参考文献：

1994.6 人民法院出版社 庄洪胜、刘志新著《人身伤残鉴定赔偿指南》

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"