How to deal with the injury of the elderly in the nursing home
In the nursing home, the elderly can get the care and care of the professionals, and they can be more and more happy because they get to know more of their peers. For this reason, more and more elderly people are favored, and they are also the first choice for their children.It has even become a fashion.
銆€銆€However, the nursing home is not a pure land, and the disputes arising therefrom have become one of the hot spots of the society.
The following representative cases collected by the author as a judge may have implications for preventing and dealing with similar disputes.
銆€銆€Should nursing staff be responsible for dereliction of duty[Case]Liu, a 70-year-old with dementia due to mental retardation, lacks the ability to judge right and wrong and self-protection.
In order to make their lives more secure and regular, their children were sent to a nursing home in January 2010.
The scope of services covered by the contract includes the daily life of taking care of their food and drink.
銆€銆€At noon on the 9th of the next month, Liu needs to go to the toilet 30 meters away from the house. The nursing staff Lu, who is watching TV on the head, let Liu go and not accompany him.
During the period, Liu accidentally fell on the steps, causing a comminuted fracture of the lumbar vertebrae, which constitutes a nine-level disability, and used medical expenses of more than 38,000 yuan.
Later, the nursing home refused to compensate for the fact that Liu fell because of his own behavior.
銆€銆€[Judge’s Comments]The nursing home should bear full liability for compensation.
銆€銆€On the one hand, the Supreme People’s Court’s implementation
<姘戞硶閫氬垯>Article 5 of the Opinions on Several Issues (Trial) states: 鈥淧sychiatric patients (including people with dementia) who have no judgment ability and self-protection ability and who do not know the consequences of their actions may be identified as those who cannot identify their own behavior.
“Liu is detained by mental retardation, lacks judgment and self-protection ability and is “a person who cannot identify his or her own behavior” and therefore needs guardianship.
銆€銆€On the other hand, Article 22 of the above Opinions also states: “The guardian may delegate part or all of the guardianship duties to others.
“Liu’s children will be attached to the nursing home by Liu, and the guardianship responsibility will be entrusted to guardianship. The nursing home will thus become the guardian of Liu during the nursing home.
Article 18 of the General Principles of the Civil Law stipulates: “The guardian shall perform the guardianship duties and protect the personal, property and other lawful rights and interests of the ward. The guardian shall bear the responsibility if he fails to perform the guardianship duties or infringes upon the legitimate rights and interests of the ward.
“Nursing staff knows the status of Liu, but also knows the nature of the service provided by them, but let Liu go to the toilet on his own, without accompanying, not only breach of contract and fault, but does not perform guardian duties.
銆€銆€On the other hand, because the dereliction of duty of nursing staff is a kind of duty behavior, it is necessary for the nursing home to take responsibility, but the nursing home can recover the nursing staff.
銆€銆€Whether the contract exemption clause is valid[Case]In August 2009, Zhao, a 73-year-old, signed a contract with the nursing home before staying in a nursing home.
The content of the contract is prepared by the nursing home in advance. Except for special requirements, all the admission personnel are used according to the gourd painting.
It states: “The admission of the injured personnel in the exercise room in the hospital without the presence of nursing staff, I bear full responsibility.
On the morning of March 18th, 2010, when Zhao went to the sports equipment of the nursing home, he suddenly injured his head and injured his head, causing the brain to be resected but no dysfunction, which constitutes an eight-level disability.
Because the nursing home refused to pay more than 47,000 yuan of medical expenses on the grounds of the appointment, Zhao sue appealed to the court.[Judge’s Comments]The nursing home should bear full liability for compensation.
銆€銆€On the one hand, from the perspective of the relationship between consumers (admitted personnel) and operators (nursing homes), Articles 7 and 18 of the Consumer Protection Law respectively stipulate: 鈥淐onsumers are buying and using goods and acceptingThe right to personal and property safety is not impaired when serving.
Consumers have the right to require the goods and services provided by the operators to meet the requirements for the protection of personal and property safety.
“The operator shall ensure that the goods or services provided by him are in compliance with the requirements for the protection of personal and property safety.”
“The operator’s security obligations to consumers are legal and cannot be lifted by agreement.”
The sudden break of the training bar for the nursing staff in the nursing home indicates that the nursing home has improper installation, maintenance and management, and there are potential safety hazards. It does not meet the requirements for personal safety, so it must be held responsible.
銆€銆€On the other hand, from the point of view of the contract, Article 40 of the Contract Law stipulates: “A party that provides a format clause exempts its liability, aggravates the other party’s liability, and excludes the other party’s main rights, the clause is invalid.
According to Article 39 of the Act: 鈥淭he format clause is the clause that the parties pre-drafted for repeated use and did not negotiate with the other party when the contract was established.
“The contract in this case obviously has the characteristics of the format clause, and the purpose of the nursing home is to exempt its own responsibility and exclude the other party’s main rights. Therefore, although there are exemption clauses, Zhao can not be bound.
銆€銆€Who should be compensated for being hurt by others[Case]Xiao Mou and a nursing home signed a two-year stay contract on January 1, 2010.
The next day, Xiaomou stayed.
On the morning of July 9, 2010, Xiaomou had a squabble with Chen, a pensioner in the hospital when using water.
Because the two nursing staff present did not know how to be good and did not discourage, the two sides became more and more fierce.
Under a certain anger, Xiao Mou pushed and pushed, but the nursing staff still only shouted “Don’t fight” and did not open Chen and Xiao.
A few minutes later, Chen pushed Xiaomou down, causing Xiaomou’s right hand to fracture when he fell to the ground, using medical expenses of more than 16,000 yuan.
In the face of Xiao’s claim for compensation, the nursing home refused because of the fact that he should seek the perpetrator Chen.銆€銆€[Judge’s Comments]After the trial, the court sentenced the nursing home to assume supplementary liability.
銆€銆€Article 37 of the Statutory Liability Law stipulates: 鈥淭he administrators of public places such as hotels, shopping malls, banks, stations, entertainment places or organizers of crowd activities shall not fulfill their security obligations and cause damage to others.Statutory responsibility.
If the third party’s actions cause damage to others, the third party shall bear the responsibility; if the manager or organizer fails to fulfill the security guarantee obligations, it shall bear corresponding supplementary responsibilities.
Article 6 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases also has similar provisions.
銆€銆€Although there is no mention of nursing homes, it is only a part of the regulations. It is not only the places that have been restricted. The managers of other places are not mentioned. Whether the organizers should take responsibility for this requirement depends on the incident.Whether the land belongs to a “public place.”
The nursing home is not only a public place, but also a business place, and at the same time is the manager of the place. Therefore, similar disputes in the nursing home are also handled in accordance with this regulation.
銆€銆€In view of the long-term quarrel and the push-pull of Xiao Mo and Chen in this case, the conflict has become more and more fierce and more and more urgent, indicating that the security guarantee obligation within the reasonable limits can be fulfilled.In the case that Chen is unable to bear the responsibility, the nursing home shall bear the corresponding supplementary compensation liability for the insufficient part.