1. Transmission of indictment and reply

According to the provisions of China's procedural law, the people's court will send a copy of the complaint to the defendant's medical institution within five days from the date of accepting and filing a medical dispute case, and the defendant's medical institution will submit a defense or reply within fifteen days from the date of receiving the complaint. If a medical institution puts forward a reply or defense opinion, the people's court shall send a copy of the reply and defense opinion to the patient and his family within five days from the date of receipt. If the defendant fails to submit the defense, it will not affect the trial of the people's court.

2, the court notice, investigation

According to the provisions of China's procedural law, the people's court should inform the parties to a medical dispute of their litigation rights and obligations in the notice of accepting the case and the notice of responding to the lawsuit, or orally. The collegial panel composed of judges shall inform the parties to the medical dispute within three days after its members are determined. In addition, both parties to a medical dispute can put forward reasons for withdrawal during the court session. Patients and their families, if they receive relevant documents and materials, should keep abreast of the litigation procedures, litigation rights and obligations. These basic litigation knowledge is very important for patients and their families, and they will encounter relevant rights and obligations during the trial. If patients and their families are not clear about the relevant regulations, they can ask your attorney for information. Avoid "saying the wrong thing" and "doing the wrong procedure" in court.

When trying a medical dispute case, the people's court shall notify the parties and other participants in the proceedings in writing or orally three days before the opening of the court session. If the hearing is held in public, the name, cause of action, time and place of the hearing shall be announced on the bulletin board at the gate of the court. Prepare conditions for the public hearing of medical dispute cases.

Before the trial, the judge began to review the litigation materials and investigate and collect the necessary evidence. Including the application made by patients and their families and the litigation evidence materials obtained. Therefore, if patients and their families have not obtained relevant evidence at this time, they should apply to the judge for evidence preservation and evidence collection in time. Judges obtain relevant evidence and materials through legal channels.

When the people's court sends personnel to investigate, it shall show their certificates to the person under investigation who knows about the medical dispute or the "key witness" in this case. After the investigation record is reviewed by the respondent, it shall be signed or sealed by the respondent and the investigator. In order to ensure the integrity and reliability of the evidence collected by the people's court, sometimes the people's court may entrust a foreign people's court to investigate when necessary. When entrusting a foreign court to investigate, it will put forward clear investigation items and requirements. The entrusted people's court will complete the investigation within 30 days after receiving the power of attorney. Therefore, it can be seen from the setting of the law that before the start of the lawsuit, the presiding judge had investigated the situation clearly and had a general impression on the case. In fact, in some medical dispute cases, if the damage facts are clear, the main purpose of the trial is to review the evidence. Because, in this case, as long as there is relevant evidence to prove, the damage result can be identified and the case can be tried. So I want to emphasize the importance of evidence again here.

3. * * * and litigants

In accordance with the provisions of the procedural law, if the parties who should participate in the litigation do not participate in the litigation, the people's court shall notify them to participate in the litigation. In other words, if there are many family members and patients of the deceased, and each family member is qualified as a plaintiff, he should participate in the lawsuit. If some plaintiffs are unable to participate in the litigation, the court shall notify them to participate in the trial. If it is really impossible or unwilling to appear in court for other reasons, the litigation rights and obligations shall be entrusted to other plaintiffs in the form of power of attorney according to law. If you really don't want to take part in the lawsuit, you can waive your rights, and the judgment has no legal effect on you.

Second, the trial procedure

1, open trial

Usually, the court proceedings are public. In other words, monitoring is generally allowed, and news media are allowed to interview and report. Public trial is the general state of litigation procedure. If the news media are interested in the cases of patients and their families, they will contact the presiding judge of the court, and after obtaining the permission of the judge, they can report and analyze the trial process of the case. If the case has a great influence in society, we can even watch the "live" trial process. Judging from the actual situation of speech dispute litigation, local courts have relevant regulations. If you want to intervene in the trial process through the news media, patients and their families should consult the relevant regulations of the local court in time.

Family members and friends of patients who attend or attend the trial should carry ID cards, household registration books and other documents with them. After the court's safety supervision registration department handles the safety supervision registration, it will be sent to the side hearing for you to attend the trial process. During the audit, keep quiet, and do not allow recording, video recording, taking notes, etc. The observers have no plaintiff qualification, no right to speak, and are not allowed to comment or argue with others. Just an observer!

In addition, the procedural law also stipulates that the people's courts try medical disputes involving state secrets, personal privacy or other provisions of the law. Public hearings are not allowed. In this case, no one is allowed to participate in the trial except the plaintiff, the defendant and the judge. The news media shall not interfere. Judging from the litigation practice of speech disputes, there are many cases involving personal privacy that are not heard in public, and there are fewer cases caused by other circumstances.

2. Authentication

According to the relevant provisions of the Procedural Law, before the medical dispute litigation is held, the clerk should find out whether the parties and other participants in the litigation are present in court and announce the court discipline. At the hearing, the presiding judge shall check the parties, announce the cause of action, announce the list of judges and clerks, inform the parties of their litigation rights and obligations, and ask the parties whether to apply for withdrawal.

In this series of proceedings, patients and their families should listen carefully to the announcement of the judge and his clerk. These related announcements are actually the litigation rights that patients and their families have in the course of litigation. In the process of litigation, the behavior of the relevant parties is realized through the "right to appeal". There is no court right beyond the "right to appeal". Even if the facts that patients and their families think do exist, they are not in the corresponding legal procedures and will still be stopped in time! Judging from the medical dispute cases that we represent, the most common situation that patients and their families encounter is that patients and their families are always eager to argue with each other when they see the agents of medical institutions explaining the situation, explaining the reasons and cross-examining the evidence. Anxious to refute the other side's defense and turn the proceedings into "court debate"! Strict litigation procedure can be described as "nailing is riveting", and the issues discussed in other procedures will not be involved in this procedure. Because patients and their families do not understand the provisions of the litigation procedure, they often "digress" and are often stopped by judges. Therefore, before the trial, we should fully communicate with the attorney, learn the legal knowledge of litigation properly, and don't often be told by the judge that "these issues will be discussed in a certain procedure". If the patient and his family really don't know the procedure, the lawyer will speak directly. Patients and their families play an auxiliary role in litigation and actively cooperate with lawyers' trial work.

3. Court investigation and cross-examination

After all the procedures are completed, the proceedings enter the stage of court investigation, which is conducted in the following order:

(a) the statements and defenses of the parties; Usually, patients, family members and attorneys read out the indictment, put forward the cause of action, claim for litigation, and state the facts and process of the case. In this process, lawyers are advised to speak, and the narrative of the facts should be concise and focused, and it is forbidden to "grab the eyebrows and beard". Because some patients' families don't know the way of litigation, I hope they don't pour out all their grievances. Often the narrative content is complicated and messy, without highlighting the key points of "key issues" and over-detailing the unimportant issues. Patients and their families said a lot, and the judge was "at a loss". When the speech should not be understood, the judge often directly interrupts the speech of patients and their families and directly asks the facts of the case! If you want to talk like this, you might as well say nothing! Therefore, it is suggested that this part of the content should be spoken by the attorney, and the documents of the speech should be prepared before the trial, so as to be targeted and concise.

After the patient and his family have finished their statements, the defendant's medical institution will reply to the plaintiff's complaint. The popular meeting is to refute the plaintiff's accusation, explain his own facts and reasons, put forward his own ideas and so on. At this time, patients and their families often "can't hear" each other's "rebuttal" and have to "argue" with each other. However, this time is the process of both sides telling stories. Patients and their families should not rush to "refute" each other's statements at this time, even if the other party is lying.

(2) Inform witnesses of their rights and obligations, witness to testify, and read out the testimony of witnesses who did not appear in court;

Judging from the actual situation of medical dispute cases, it is rare for witnesses to directly participate in court proceedings. Often witnesses provide "witness testimony" and submit it to the court in the form of written testimony. Therefore, in this procedure, witness testimony is often read out. Before that, materials that can prove the identity of the witness and the facts of the case should be prepared.

(three) to produce documentary evidence, material evidence and audio-visual materials;

If patients and their families collect relevant documentary evidence, physical evidence and audio-visual materials before litigation, they can also submit them to the court during the trial. This time is what we introduced to you before, and the preparation of evidence is the usual view before litigation! If patients and their families always establish the concept of evidence in their minds and pay attention to collecting evidence everywhere, it will certainly play a key role in our medical dispute litigation. The client of a medical dispute case I represent is a policeman. After his father died, when other relatives had a big fight with the medical institution, he always "negotiated and mediated" with the medical institution. He came to my law firm and showed me the audio and video of the attending doctor admitting his medical fault when consulting with the medical institution. I didn't expect such evidence! What he said is more direct. Try to collect evidence. Up to now, our lawyers admire his "perseverance"! Of course, it may be related to his "judicial practice", but I think it is also very gratifying if ordinary patients and their families can obtain "key evidence" through the guidance of lawyers. After all, this is the concrete embodiment of our ordinary citizens' study of law usage and the progress of our legal civilization. Therefore, it is hoped that civilized patients and their families will have enough "evidence concept".

Judging from the medical litigation cases we represent, the legal quality of medical dispute handlers in large medical institutions is also very high. During the trial of a medical dispute case, the other medical institution showed a video of a patient walking to the toilet conveniently without any auxiliary personnel and equipment, and this case was to investigate the lawsuit that the steel nail of the medical institution was deviated, which caused the patient to be unable to walk on his own, which constituted a disability. It is obviously very unfavorable for civilization for the other party to produce such evidence in court! Therefore, it is necessary to remind patients and their families to have the ability of "anti-reconnaissance". Don't leave evidence against yourself. Otherwise, even if your attorney's eloquence is no matter how good, he can't deny that this is a certain fact!

(4) Cross-examination of evidence

When the plaintiff and the defendant state and submit relevant evidence, the other party has the right to cross-examine the authenticity and relevance of the evidence. Generally speaking, it is to "recognize" the evidence presented by the other party, or raise objections to the authenticity, such as forging or deleting medical records, false witness testimony and so on. At this time, patients and their families can put forward their own views on each other's evidence narrative! Or raise objections that the evidence has nothing to do with the facts of this case, such as the statement that another patient is in the same situation as the patient in this case, because it has nothing to do with this case, it cannot be used as evidence. Therefore, it is evidence that lacks relevance, and it can also deny the reasons for using it as evidence.

In this process, many patients and their families will ask for "medical record identification" to determine whether the medical record is later modified or forged. However, judging from the current technical ability and situation of "document identification" in China, it often fails to meet the expectations of patients and their families, and it is technically difficult. Judging from the situation of appraisal institutions all over the country, the appraisal level is limited. Don't pin all your hopes on "document appraisal", otherwise it will undermine the original intention of patients and their families to protect their rights.

In the process of cross-examination, in order to examine the authenticity of the evidence, the judge will ask questions to both parties, or investigate and collect evidence after the trial, and verify the evidence with relevant personnel and witnesses.

4. Legal rights in litigation

According to the provisions of China's procedural law, patients and their families can present new evidence in court, and with the permission of the court, they can ask questions from witnesses, appraisers and inspectors. Patients and their families may request a new investigation, appraisal or inquest, and the people's court shall decide whether to grant it or not. In other words, if patients and their families can obtain new evidence in the course of litigation, they can submit it to the court. However, from our litigation experience of representing medical disputes, after entering the litigation procedure, medical institutions also have lawyers to respond, and the other party is often very careful. When you go to the trial, you often get nothing. Even the evidence that can be obtained is often "edge ball" and cannot directly prove the facts of the case. Therefore, obtaining evidence before litigation is in peacetime!

Patients and their families who have objections to the witness testimony and appraisal conclusion of witnesses and appraisers may appeal to the court or apply for re-appraisal. However, from the experience of litigation, often these people will not attend the trial directly. Both parties to medical disputes directly cross-examine witness testimony and expert conclusions to determine their authenticity and relevance.

5, identification procedures

After the appeal procedure is over, the court will entrust the relevant medical accident appraisal institution or personal injury judicial appraisal institution for appraisal. After the appraisal is completed, the appraisal conclusion shall be submitted to the court, and the court shall read out the appraisal conclusion and inspection record. Both sides of the medical dispute will cross-examine the conclusion again. Put forward your own views and opinions on the authenticity and relevance of the facts and conclusions of the appraisal inspection. If the appraisal conclusion is very unfavorable to patients and their families, they should apply for re-appraisal. However, if patients and their families can't find the reason why the appraisal institution obviously violates the legal facts, under normal circumstances, the judge will not agree to do the relevant appraisal again. Therefore, patients and their families should not pin their hopes on re-appraisal. Such an application itself has procedural obstacles. It is already the "worst choice"!

6. Court debate

After the above-mentioned court proceedings, according to the relevant provisions of China's procedural law, the court debates are conducted in the following order:

(a) the plaintiff and his agent ad litem to speak;

(two) the defendant and his agent ad litem reply;

(three) the third person and his agent ad litem to speak or reply;

(4) Debate with each other.

Because of the particularity of medical disputes, the facts of medical technology are confirmed by appraisal, so in this respect, both sides either agree or disagree, and there are few arguments with each other. Therefore, the attorneys of both parties often pay more attention to the application of the law, the calculation of the amount of compensation and the sharing of responsibilities. There will be no scenes of fierce arguments between us in film and television works, especially in criminal cases.

At the same time, remind patients and their families that the content of the debate in this procedure is "finding out the facts and applying the law", and it is forbidden to "digress" and dump their feelings and psychological state. If possible, it is best for a lawyer to speak on his behalf. Otherwise, the judge will stop talking because it has nothing to do with this case!

7. Concluding observations

After the court debate, the presiding judge shall consult the final opinions of all parties in the order of plaintiff, defendant and third party. This "final opinion" is whether we stick to our own views and whether we will not change our opinions. That is to say, it is a question of one sentence, just like the above situation. Don't "digress". Don't complain endlessly

8. Mediation and adjudication

According to the provisions of China's procedural law, after the court debate, a judgment shall be made according to law. Mediation can be conducted before the judgment, and mediation can also be conducted. If mediation fails, a judgment shall be made in time. In other words, the judge will still ask the parties whether they are willing to mediate before the judgment. Judging from the medical dispute cases we represent, if both parties can mediate before the lawsuit, they can mediate, and more often they enter the lawsuit because mediation fails. Therefore, at this stage of litigation, it is rare for both parties to ask for mediation. It is more common to enter the judgment procedure.

The above description is an appraisal description of the whole medical dispute litigation procedure. On the basis of this basic procedure, the judge controls and grasps the progress and addition of the procedure according to the specific situation. The parties to a medical dispute shall conduct litigation under the command of a judge. Let's talk about things that often happen in litigation and their legal consequences.

1, legal consequences of not appearing in court

In the medical dispute cases that we represent, it often happens that one party cannot appear in court. According to the relevant provisions of China's procedural law, if the plaintiff (patient and his family) refuses to appear in court without justifiable reasons after being summoned by summons, or withdraws from court without the permission of the court, it can be treated as withdrawal; If the defendant (medical institution) refuses to appear in court without justifiable reasons after being summoned by summons, or withdraws from court without the permission of the court, he may make a judgment by default.

In other words, the trial procedure is binding on both parties. If patients and their families are unable to attend the trial for other reasons, they can "authorize" your lawyer to express their opinions and bring a lawsuit.

2. Postpone the trial

In accordance with the provisions of China's procedural law, in any of the following circumstances, the hearing may be postponed:

(a) the parties who must appear in court and other participants in the proceedings have justified reasons for not appearing in court;

(2) The party concerned temporarily applies for withdrawal;

(3) It is necessary to notify new witnesses to appear in court, obtain new evidence, re-authenticate, conduct an inquest or make supplementary investigations;

(4) Other circumstances that should be postponed.

Judging from the medical dispute cases we represent, the second and fourth cases are relatively rare. More is the first and third cases. If it is a "party who must appear in court", the judge will often give a very "serious" notice in the form of a summons before the lawsuit. If the notice is not available, it will be served by announcement. Because, the judge is also very clear that if the parties are unable to appear in court, it is impossible to explain the facts of the case. Only by delaying his arrival can he attend the trial on time! The most common situation is the third situation. In the process of litigation, new situations appear, and sometimes one party uses "strategy" as a means to achieve its litigation purpose, such as delaying time and waiting for the patient to recover. Therefore, patients, their families and attorneys should avoid unfavorable litigation procedures according to the specific circumstances of the case; Reasonable use of litigation clauses is beneficial to one's own litigation results.

3. Suspension and termination of proceedings

According to the provisions of China's procedural law, if there are special circumstances in the proceedings, the judge can decide to suspend and terminate the proceedings.

The "Procedure Law" stipulates that in any of the following circumstances, the lawsuit may be suspended:

(a) one of the parties dies and needs to wait for the heir to indicate whether to participate in the proceedings; Because medical litigation is a lawsuit in which patients and their families jointly act as plaintiffs, even if patients die in the course of litigation, the families of the deceased can still continue litigation;

(2) One party has lost the capacity for litigation and has not yet determined his legal representative; This situation is similar to that described above, and the problem is not big. Will not become an obstacle to the lawsuit of the patient's family. According to the relevant provisions of the procedural law, if a party loses the capacity for litigation, the patient's family is his legal representative and can represent the patient in litigation;

(3) The legal person or other organization as a party terminates, and the successor of rights and obligations has not been determined; This kind of situation is rare, and it happens occasionally in some private hospitals, but in this case, it is likely to be different from the determination of rights and obligations. Often the other party "packed up" and ran away when they saw that the situation was not good! What patients and their families are facing is not suspension, but more likely that the judge announces the termination of the lawsuit, which is what we describe below!

(4) One party is unable to participate in the litigation due to irresistible reasons;

(five) the case must be based on the trial result of another case, and the other case has not yet been concluded;

(6) Other circumstances in which litigation should be suspended.

In order to prevent the case from being "protracted", the procedural law also stipulates that the lawsuit will be resumed after the reasons for suspending the lawsuit are eliminated. Medical dispute litigation will continue.

The "Procedure Law" stipulates that in any of the following circumstances, the lawsuit may be terminated:

(1) The plaintiff dies without an heir, or the successor waives the litigation right;

(2) The defendant's medical institution or organization went bankrupt or was cancelled, and there was no property or person who should bear the obligations. If this happens, patients and their families will face the problem of not being able to get the verdict. Even if there is a judgment, patients and their families will win the case, and they will encounter the problem of "difficult execution". This situation is often caused by medical institutions with "extremely poor integrity". It is also the last thing patients and their families want to see.

Fortunately, the probability of the above two situations is not high! Because medical litigation is jointly conducted by patients and their families as plaintiffs, even if patients die in the course of litigation, the families of the deceased can still continue the litigation procedure, which will not be a major obstacle in law. The court has relevant enforcement procedures, and patients and their families can also pursue their legal responsibilities.

4. The formation of the trial record.

According to the provisions of the procedural law, during the trial, the clerk shall record all the activities of the trial on the record, which shall be signed by the judges and the clerk.

The court record shall be read out in court, or the parties and other participants in the proceedings may be notified to read it in court or within five days. If the parties and other participants in the proceedings think that their statements are omitted or wrong, they have the right to apply for correction. The court record shall be signed or sealed by the parties and other participants in the proceedings.

If patients and their families are dissatisfied with the judgment and want to go through the second instance procedure through the appeal trial procedure, the court of second instance will take the trial transcript of the court of first instance and review the first instance procedure as the legal basis for the second instance to change the judgment. Therefore, patients and their families should read and review the contents of the test record before signing.

5, the form and time of sentencing

According to the provisions of China's procedural law, the people's courts will publicly pronounce judgments on cases that are tried in public or not. If a verdict is pronounced in court, it shall be served within ten days; If the sentence is pronounced regularly, a written judgment will be issued immediately after the sentence is pronounced. When sentencing, the parties must be informed of the right of appeal, the time limit for appeal and the court of appeal.

The verdict is a criterion for the end of the litigation stage. If patients and their families are satisfied with the verdict, they should wait for the appeal period to pass, so as to make an effective legal judgment. Patients and their families can apply to the court for enforcement of the judgment. Patients and their families who are dissatisfied with the litigation results shall appeal in time according to the time stipulated in the judgment. Because the appeal is based on the dissatisfaction with the first instance, which is different from the litigation requirements of the appeal, it is suggested that the patient and his family should be represented by lawyers to write an appeal. The facts and reasons for the targeted appeal request.

6. About the probation period

According to the provisions of China's procedural law, court proceedings are divided into: ordinary procedures and summary procedures. The relevant probation period is also different.

I. Duration of ordinary legal proceedings

A case tried by the people's court through ordinary procedures shall be concluded within six months from the date of filing the case. If there are special circumstances that need to be extended, it can be extended for six months with the approval of the president of our hospital; If an extension is needed, it shall be reported to the people's court at a higher level for approval.

According to the relevant provisions of China's procedural law, in medical litigation, the time of appraisal cannot be calculated to the trial period. In other words, the above time limit is the time limit of "pure trial", excluding the time of appraisal. So in this case, it takes ten months to one year for patients and their families to get the first-instance judgment in a litigation stage. It can be said that medical dispute litigation is a "protracted war", a "protracted war" process of constantly submitting materials, conducting procedures, explaining facts, holding court sessions and holding appraisal meetings. This will be a very laborious and labor-intensive process for patients, their families and lawyers. Therefore, once again remind patients and their families that they should be fully psychologically prepared before litigation. Be prepared for a "protracted war", and the family members of patients should also be prepared for time, energy and money.

Second, the summary procedure trial period

In view of the endless medical disputes in China, China's procedural law also stipulates that the grass-roots people's courts and the courts dispatched by them can apply summary procedures to simple medical disputes with clear facts, clear rights and obligations and little controversy. For simple medical disputes, patients and their families can sue orally. Both parties to a medical dispute may at the same time request the grassroots people's court or the court dispatched by it to resolve the dispute. The basic people's court or the court dispatched by it may hold a hearing immediately or hold another hearing. When trying simple civil cases, the grass-roots people's courts and the courts dispatched by them can summon the parties and witnesses at any time in a simple way. Simple medical disputes are tried by a single judge. When a court tries a case by summary procedure, it shall conclude the case within three months from the date of filing the case.

Summary procedure is usually applied to cases where the facts are very clear and fully recognized by the other party. In fact, such cases are more about determining the amount of compensation. Otherwise, in determining the facts, we must go through the appraisal procedure, and the time will increase a lot, so it will no longer be a summary procedure. According to the provisions of the procedural law, if the parties object to the application of summary procedure, and the people's court considers that the objection is established, or the people's court finds it inappropriate to apply summary procedure during the trial, it shall transfer the case to the ordinary procedure for trial. In other words, there is still a six-month probation period for changing the summary procedure into the ordinary procedure.

7, the formation of the verdict

According to the provisions of China's procedural law, the judgment shall state:

(a) the cause of action, the claim, the facts and reasons of the dispute;

(2) The facts, reasons and applicable legal basis of the judgment;

(three) the verdict and the burden of litigation costs;

(4) the appeal period and the court of appeal.

The written judgment shall be signed by the judges and court clerks, and stamped with the seal of the people's court.

As we said before, the judgment is a standard for the end of the litigation stage. If patients and their families are satisfied with the verdict, they should wait for the appeal period to pass, so as to make an effective legal judgment. Patients and their families can apply to the court for enforcement of the judgment. Patients and their families who are dissatisfied with the litigation results shall appeal in time according to the time stipulated in the judgment. Because the appeal is based on the dissatisfaction with the first instance, which is different from the litigation requirements of the appeal, it is suggested that the patient and his family should be represented by lawyers to write an appeal. The facts and reasons for the targeted appeal request. Because the patient is not satisfied with the first-instance judgment, the first-instance judge and the other party in the appeal submitted, he is unwilling to submit an appeal directly to the original first-instance judge. Trying to submit it directly to the judge of second instance is actually a misunderstanding of the proceedings. According to the provisions of China's procedural law, if a party directly appeals to the people's court of second instance, the people's court of second instance shall transfer the appeal to the people's court that originally tried it within five days. Because this involves a working procedure between the courts, the court of first instance must write a legal opinion on the appeal case and submit it to the court of second instance. In other words, the trial judge must see the appeal. On this issue, patients and their families should not "take a long detour", but should follow the procedures prescribed by law. If you have a lawyer around, that's a problem. Even if the lawyer has no medical background, he is familiar with the proceedings. The role of lawyers in representing cases is revealed!

8. The entry into force of the judgment

According to the provisions of China's procedural law, the Supreme People's Court's judgments and rulings, as well as those that are not allowed to appeal according to law or have not appealed after the appeal period, are all legally effective judgments and rulings.

Usually, the appeal period is fifteen days, counting from the date when the patient and his family receive the judgment. Only after the appeal period is a legally effective judgment can you apply to the court for enforcement.