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No. 9 of Ten Cases concerning Administrative Nonfeasance Published by the Supreme People's Court: Ai Liren v. Health and Family Planning Commission of Shenyang City (a case concerning administrative nonfeasance)
最高人民法院关于行政不作为十大案例之九:艾立仁诉沈阳市卫生和计划生育委员会行政不作为案
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No. 9 of Ten Cases concerning Administrative Nonfeasance Published by the Supreme People's Court: Ai Liren v. Health and Family Planning Commission of Shenyang City (a case concerning administrative nonfeasance) 最高人民法院关于行政不作为十大案例之九:艾立仁诉沈阳市卫生和计划生育委员会行政不作为案
 
(1) Basic Facts (一)基本案情
On March 2, 2013, Ai Liren hospitalized at Shenyang Zhongda Orthopedics Hospital (hereinafter referred to as “Zhongda Orthopedics”) for the closed fracture of his right calf. After a surgery, the fracture was not cured, but the closed fracture caused bone exposure and infection. After more than ten times of surgical operations, Ai Liren still was not cured and he had a leg disability now. Ai Liren believed that there was medical malpractice in the treatment and there was an illegal fact that the surgeon surnamed Wu who participated in the first surgical operation beyond his level. From May to December 2013, Ai Liren reported and complained multiple matters concerning a surgery performed by a surgeon of Zhongda Orthopedics beyond his level to the Health Bureau of Shenyang City, Liaoning Province (currently renamed to “Health and Family Planning Commission of Shenyang City,” hereinafter referred to as the “Health and Family Planning Commission of the City”) for multiple times, but the Health and Family Planning Commission of the City failed to give a reply. After the CCTV News Channel covered this matter on December 24, 2013, Ai Liren was received by the Division of Medical Service Supervision under the Health and Family Planning Commission of the City, which committed to making investigation and handling. On the afternoon of February 19, 2014, medical service personnel surnamed Zhang from the Health and Family Planning Commission of the City gave a reply by telephone that “Wu participated in the surgery not beyond his level.” Against the reply, Ai Liren filed an administrative lawsuit against the Health and Family Planning Commission of the City and requested the court to order that defendant should impose administrative penalties on the hospital and the surgeon who participated in the surgery. 2013年3月2日,艾立仁因右小腿闭合骨折就诊于沈阳中大骨科医院(以下简称中大骨科),术后不仅骨折未予治愈,其闭合骨折还引发成骨外露、骨感染,后经十次手术未能治愈,现腿部残疾。艾立仁认为治疗中存在医疗损害,参加第一次手术的医师吴某存在越级手术这一违法事实。自2013年5月至12月间,艾立仁多次向辽宁省沈阳市卫生局(现更名为沈阳市卫生和计划生育委员会,以下简称市卫计委)就中大骨科越级手术等多项问题提出举报与投诉,市卫计委未给予回复。2013年12月24日中央电视台新闻频道将此事报导后,艾立仁得到市卫计委医政处的接待,并承诺调查处理。2014年2月19日下午,市卫计委医政工作人员张某通过电话回复说“吴某不是越级手术”。艾立仁对该答复不服,以市卫计委为被告提出行政诉讼,请求判令被告对手术医院及手术医生进行行政处罚。
(2) Judgment (二)裁判结果
After a trial, the People's Court of Heping District, Shenyang City held that: Since plaintiff, Ai Liren, did not provide evidence to prove that he once filed an application for imposing administrative penalties on the hospital and the surgeon that participated in the surgery with defendant, the Health and Family Planning Commission of the City, the viewpoint of plaintiff that defendant did not perform its statutory duties lacked factual basis, the Court did not support the claim of plaintiff, and such claim should be dismissed. Therefore, the Court rendered a judgment to dismiss the claim of plaintiff. After Ai Liren appealed, the Health and Family Planning Commission of the City contended that: Zhongda Orthopedics was a second-class specialized hospital and had the medical qualification for performing a surgery for Ai Liren. The surgeon surnamed Wu was a resident doctor with high seniority and the hospital authorized him to perform ClassI and ClassII surgeries and under the guidance of superior doctors, he may organize some ClassIII surgeries; the Measures for the Administration of Clinical Application of Medical Technologies provided that classification of surgeries shall be organized and implemented by medical institutions themselves. Zhongda Orthopedics had no corresponding classification at the moment and thus Wu did not have the problem of performing the surgery beyond his level. 沈阳市和平区人民法院一审认为,原告艾立仁未提供证据证明其曾向被告市卫计委提出过对手术医院及医生进行行政处罚的申请,故原告认为被告不履行法定职责的观点不存在事实根据,对原告的诉讼请求不予支持,应予驳回。遂判决驳回原告的诉讼请求。艾立仁上诉后,市卫计委辩称,中大骨科是一个二级专科医院,具有为艾立仁手术的医疗资质,手术医生吴某系高年资住院医,该医院授权其从事一、二级手术,并且在上级医师指导下可组织部分三级手术;《医疗技术临床应用管理办法》规定手术分级是由医疗机构自行组织实施,中大骨科现在没有相关的分级,故吴某不存在越级手术问题。
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