Zheng Xuefeng and Chen Guoqing v . People’ s Hospital of Jiangsu Province [郑雪峰、陈国青诉江苏省人民医院医疗服务合同纠纷案)]

The Plaintiffs Zhen Xuefeng and Chen Guoqing were a married couple seeking a fertility treatment. They signed a contract regarding such assisted reproduction with defendant People’s hospital of Jiangsu Province (“People’s hospital”). The contract did not specify which of two fertilization techniques (Intra-Cytoplasmic Sperm Injection (“ICSI”) or In Vitro Fertilization (“IVF”)) would be used, however the plaintiffs were charged for the ICSI technique and other evidence indicated that the plaintiffs understood they were to receive the ICSI technique. When the People’s hospital implemented the artificial insemination, however, it applied the IVF technique instead of ICSI, which result in a failure of insemination. The People’s hospital did not inform the plaintiffs about this change.

The two plaintiffs brought this suit to the People’s Court of Gulou District (”People’s Court”), claiming that the defendant breached the contract, and violated China’s consumer protection laws. They requested that defendant compensate the plaintiffs for their medical bills of RMB 25,000, cost of lost labor of RMB1392.5, and mental injury of RMB 10,000, and apologize publicly.

The People’s Court of Gulou District (“People’s Court”) held that the defendant breached the contract. The People’s Court first noted that, although there was a contractual relationship between the plaintiffs and defendants, the Law on Protection of Consumers’ Rights and Interest was not applicable as the People’s hospital was a non-profit organization and not a commercial operator. The People’s Court then emphasized the importance of patient choice and the responsibility of a medical provider to inform patients as to their medical options. The People’s Court determined that, although there had been no written agreement as to which technology was to be used, the plaintiffs had made clear their choice of the ICSI technique; thus there was implied agreement that the ICSI technique was to be used.

In determining damages, the People’s Court found that the plaintiff’s payment of medical service fee, including the physical examination fee, the medical bills, and the cost of drugs, was a recoverable loss. However, the compensation for the cost of labor was unclear and therefore unrecoverable. The People’s Court also rejected plaintiffs’ claim of mental injury compensation as such damages were unavailable under a claim for breach of contract.

The defendant appealed to the Intermediate Court of Nanjing.

The Court confirmed the facts found by the People’s Court, namely that it was clear the parties had agreed to the ICSI technique. The Court held that where a party failed to perform its obligations under a contract, it must bear the liabilities for breach of contract. Since the People’s hospital altered the fertilization technology used without permission in a non-emergency situation, the Court determined that the People’s hospital breached the contract and should compensate the monetary lost of the plaintiffs. Therefore, the Court dismissed the appeal and sustained the judgment of the People’s Court.

1.“Hence, it is recognizable that although both plaintiffs and defendant have no written agreement on which technology to adopt, the plaintiff knows the existence of two different treatment and the fee payment shall be deemed as a choice among the medical treatment and the charging of People’s Court shall be deemed as a confirmation of the choice made by plaintiff, which the court gives the benefit of doubt and judged that there is an agreement between plaintiffs and defendants on adopting ICSI technology to perform assisted reproduction and People’s hospital is obligated to treat plaintiffs with ICSI”(Page 2, paragraph 3)

因此，虽然原、被告双方没有书面约定采取何种技术进行治疗，但是综合分析以上证据可以认定，原告已知悉存在两种不同的治疗手段，其缴费的行为应当认为是对治疗技术方案做出的选择，人民医院收费的行为应当认为是对原告选择的确认，因此亦可以推定，原、被告之间已经就采取ICSI技术进行人工辅助生育技术达成合意，人民医院有义务按照ICSI技术为原告进行治疗。(page 1, paragraph 9)

2.”… medical service is highly professional, hospitals are bestowed with high discretion in fulfilling the commitment. But because the hospital and the patients are equal civil subject in the medical service contract and the implementation of medical behavior shall have direct impact upon the body of patients. If the right to the choice of the patients is totally neglected, then it is obviously unfair.” (page3, paragraph 2)

.”…又由于医疗行为具有高度的专业性，因此医院在履约中具有较高的裁量权。但医院与患者在医疗服务合同关系中是平等的民事主体，且医疗行为的实施结果会对患者的身体造成直接影响，若完全不考虑患者的选择权明显有失公平。(page2, paragraph 5)

3. “In the medical service contract, the hospital is duty bound to explain the medical treatment and the patient is entitled to the right of choosing among medical solutions. Before implementing medical solution, the hospital is liable to explain medical solutions to patients or its agents unless in emergency. And the patients are fully entitled to be informed the after-effect of medical treatment do onto themselves and choose among medical solutions.” (page3, paragraph 2)

在医疗服务合同中，医院负有对医疗方案的说明义务，而患者享有对医疗方案一定的选择权。在实施医疗方案前，除非在紧急情况下，医院有义务就该医疗方案向患者或其代理人进行充分的说明。患者有权充分了解医疗方案可能给自己带来的后果，有权对医疗方案进行选择。(page 2, paragraph 5)

4. Contract Law of Article 107 stipulates “If a party fails to perform its obligations under a contract, or its performance fails to satisfy the terms of the contract, it shall bear the liabilities for breach of contract such as to continue to perform its obligations, to take remedial measures, or to compensate for losses.” In this case, the plaintiff’s payment of medical service fee in the medical service contract is a loss and its scope includes the check-up fee and the medical bill the plaintiffs paid to People’s Hospital and the bill plaintiffs paid for the drugs purchased outside the hospital, which the defendants shall pay back. (page 4, paragraph 1)

合同方法第107条规定：“当事人一方不履行合同义务或者履行合同义务不符合约定的，应当承担继续履行、采取补救措施或者赔偿损失等违约责任。”本案中，原告为履行医疗服务合同而付出的医疗费用属于其损失，具体范围包括原告向人民医院支付的检查费、医药费以及原告在院外购买药品支出的费用，被告应当予以赔偿。（page 2, pagraph7)