Representing Xu in medical damage compensation dispute against Shenzhen Southern Medical Clinic

[Lead Attorney: Zhiming Law Firm]

I. Case Recap

At the beginning of 2000, Plaintiff Xu XX saw an advertisement published by Defendant Shenzhen Nanfang Medical Outpatient Department in a magazine, which read as follows: "Exclusively introduced American fully computerized penile foreskin rapid healing instrument, which can accurately remove excess foreskin in ten minutes at one time. No incision, no pain, no bleeding, no trace, no effect on work. It can lengthen short penises, correct deformities, and cure granulations and red spots in one session" [Yue Yi Guang Zheng Zi (99) No. (06) 131]. The plaintiff then went there on September 12, 2000. After consultation, the attending physician Wang XX made a promise to the plaintiff that he could perform penile enlargement surgery for the plaintiff, and guaranteed that this surgery would have no effect whatsoever on the plaintiff's physical health or sexual function. The plaintiff then underwent the surgery on September 13. However, the surgical result was completely contrary to the doctor's promise: the penis was severely deformed, sexual function was seriously impaired, making sexual intercourse completely impossible, and the surgical area was unbearably itchy with obvious foreign body pressure sensation. The plaintiff repeatedly negotiated with the defendant over this matter. Although the defendant admitted that the failed surgery had caused harm to the plaintiff's body, it consistently ignored the plaintiff's compensation demands, causing the plaintiff tremendous physical and mental suffering. On November 7, 2000, Zhiming Law Firm accepted this case and lawfully filed a lawsuit with the Luohu District People's Court on behalf of the plaintiff. The "Statement of Complaint" stated: "Article 106, Paragraph 2 of the 'General Principles of Civil Law' provides that 'citizens and legal persons who through fault infringe upon state or collective property, or infringe upon the property or person of others, shall bear civil liability,' and Article 119 provides that 'those who infringe upon the body of a citizen and cause injury shall compensate for medical expenses, reduced income due to lost working time, living allowances for the disabled, and other expenses.' Accordingly, the plaintiff requests the People's Court to order the defendant to compensate the relevant expenses in the amount of 100,278.80 yuan, compensate for mental damages in the amount of 50,000 yuan, and bear the attorney's fees and litigation costs of this case."

II. Case Outcome

During the trial of this case, mediation was conducted under the auspices of the Luohu District Court, and both parties voluntarily reached the following agreement [Case No. (2001) Shen Luo Fa Min Yi Chu Zi No. 7]:

First, the defendant Shenzhen Nanfang Medical Outpatient Department shall pay the plaintiff Xu XX the sum of 60,000 yuan within one day from the effective date of this mediation agreement.

Second, after Plaintiff Xu XX receives the aforementioned payment, Plaintiff shall not seek recovery from Defendant Shenzhen Nanfang Outpatient Department in any form.

Third, the plaintiff Xu XX shall bear the case acceptance fee of 100 yuan.

The aforementioned agreement complies with relevant legal provisions, and this court hereby confirms it. This mediation document shall become legally effective upon receipt of signature by both parties.

III. Key Issues of This Case

The key issue in this case is how to claim fault liability compensation from the defendant, particularly compensation for mental distress. The failed surgery not only caused physical harm to the plaintiff but also impaired the couple's sexual life, inevitably resulting in mental and emotional harm to both spouses. When this case was accepted, the Supreme People's Court's "Interpretation on Certain Issues Concerning the Determination of Mental Distress Compensation Liability in Civil Torts" (Fa Shi [2001] No. 7) had not yet been promulgated. Article 119 of the General Principles of Civil Law provides only that where a citizen's body is harmed, compensation shall be paid for medical expenses, reduced income due to lost working time, living allowances for the disabled, and other such expenses. This is the fundamental legal provision governing personal injury cases, and it contains no explicit language regarding liability for mental distress, with only the vague word "etc." seemingly encompassing such content. There was intense debate among legal professionals and lawyers as to whether the scope of protection of natural persons' personality rights included mental distress, prior to the promulgation of the aforementioned Fa Shi [2001] No. 7 document. However, in this case, there were indeed facts of mental and emotional harm to both spouses, and therefore, the claim for mental distress damages became the focus and difficulty of this case.

IV. Case Analysis

(1) Damages Compensation Since the plaintiff provided the defendant's surgical cosmetic advertising, contract, invoice, and the diagnostic certificate from the outpatient department two months after the surgery confirming "deformity and swelling" at the surgical site, this constitutes a complete chain of evidence proving the defendant's act of harming the plaintiff's person. The defendant cannot easily deny the fact of harm. Therefore, the focus of this case lies in the claim for damages compensation. Attorney Zhiming, pursuant to Article 119 of the General Principles of the Civil Law, claimed compensation for medical expenses, lost wages, living allowance, and other fees totaling 100,278.80 yuan, with the defendant bearing the attorney's fees and litigation costs in this case.

(II) Mental Damage Compensation. Lawyer Zhiming, relying on Article 38 of the Constitution, which provides that "the personal dignity of citizens shall not be violated," expansively interpreted the scope of liability for torts against the personality rights of natural persons under Article 119 of the General Principles of Civil Law. Based on the facts that the failed surgery caused harm to the plaintiff's physical health, mental well-being, and the marital affection of family life, he claimed 50,000 yuan in mental damage compensation, striving to obtain comprehensive relief for the plaintiff's personal injury. Facts proved that the legal basis and the amount of compensation for mental loss proposed by Lawyer Zhiming in this case took a dominant position in the subsequent settlement mediation, enabling the plaintiff to obtain relatively satisfactory compensation.

(Compiled and commented by Guo Tianxi)

Guangdong Zhiming Law Firm

Office

July 17, 2001