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

【Lead Attorney: Wang Tengfeng】

I. Case Recap

In early 2000, the plaintiff, Xu XX, saw an advertisement in a magazine by the defendant, Shenzhen Nanfang Medical Clinic, which read: "Exclusively introducing the American fully computerized penile plastic surgery rapid recovery device, which can accurately remove excess foreskin in ten minutes in one session. No incision, no pain, no bleeding, no scarring, no impact on work. It can lengthen short penises, correct deformities, and cure bumps and red spots in one session" [Yue Yi Guang Zheng Zi (99) No. (06) 131]. The plaintiff then went on September 12, 2000. After consultation, the attending physician, Wang XX, promised the plaintiff that he could perform a penile augmentation surgery and guaranteed that the surgery would have no effect on the plaintiff's health or sexual function. The plaintiff underwent surgery on September 13. However, the surgical outcome was completely contrary to the doctor's promise: the penis was severely deformed, sexual function was seriously impaired, making sexual activity impossible, and the surgical site was unbearably itchy with a noticeable foreign body sensation. The plaintiff repeatedly negotiated with the defendant, who admitted the surgery had failed and caused harm to the plaintiff's body but ignored the plaintiff's compensation demands, causing immense physical and mental suffering. On November 7, 2000, attorney Wang Tengfeng took on the case and legally filed a lawsuit with the Luohu District People's Court. The complaint stated: "Article 106, Paragraph 2 of the General Principles of Civil Law stipulates that 'citizens or legal persons who, through fault, infringe upon state or collective property, or upon the property or person of others, shall bear civil liability.' Article 119 stipulates that 'those who cause harm to a citizen's body shall compensate for medical expenses, reduced income due to lost work time, living subsidies for the disabled, and other expenses.' Accordingly, the plaintiff requests the court to order the defendant to pay relevant expenses of 100,278.80 yuan, mental damages of 50,000 yuan, and bear the attorney fees and litigation costs of this case."

　II. Case Outcome

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

"First, the defendant, Shenzhen Nanfang Medical Clinic, shall pay the plaintiff, Xu XX, 60,000 yuan within one day of this mediation agreement taking effect."

Second, after receiving the above-mentioned funds, Plaintiff Xu XX shall not seek recourse from Defendant Shenzhen Southern Medical Outpatient Department in any form.

Third, the case acceptance fee of 100 yuan shall be borne by Plaintiff Xu XX.

The above agreement complies with relevant legal provisions and is hereby confirmed by this court. This mediation document shall become legally effective upon receipt by both parties.

III. Key Issues of This Case

The key issue of this case lies in how to seek compensation for fault liability, particularly compensation for mental distress, from the defendant. The failed surgery not only caused physical harm to the plaintiff but also damaged the couple's sexual life, inevitably leading to mental and emotional harm to both spouses. At the time this case was accepted, the Supreme People's Court's "Interpretation on Several Issues Concerning the Determination of Compensation Liability for Mental Distress in Civil Torts" (Fa Shi [2001] No. 7) had not yet been issued. Article 119 of the "General Principles of the Civil Law" only stipulates that compensation for medical expenses, lost income due to missed work, and living subsidies for the disabled shall be paid for physical harm caused to citizens. This is a general legal provision for handling personal injury cases, with no clear wording regarding liability for mental distress, only a vague "etc." that seems to encompass such content. Before the issuance of Fa Shi [2001] No. 7, there was intense debate in the legal and lawyer communities about whether the scope of protection for natural persons' personality rights includes mental distress. However, this case indeed involved facts of mental and emotional harm to both spouses, making the claim for mental distress compensation a key and difficult point in this case.

　IV. Case Analysis

(I) Compensation for Damages: The plaintiff provided the defendant's surgical cosmetic advertisement, contract, invoice, and a diagnosis certificate from the outpatient department two months after the surgery indicating "deformity and swelling" at the surgical site, forming a complete chain of evidence proving the defendant's infringement on the plaintiff's personal rights. The defendant could not easily deny the fact of damage, so the focus of this case lies in the claim for compensation. Lead attorney Wang Tengfeng, based on Article 119 of the General Principles of the Civil Law, sought compensation for medical expenses, lost wages, living subsidies, and other costs totaling 100,278.80 yuan, with the defendant bearing the attorney fees and litigation costs of this case.

(II) Compensation for Mental Damages: Lead attorney Wang Tengfeng, relying on Article 38 of the Constitution, which states that "the personal dignity of citizens shall not be violated," expansively interpreted the scope of liability for infringement of natural persons' personality rights under Article 119 of the General Principles of the Civil Law. Based on the fact that the surgical failure caused harm to the plaintiff's body, mental state, and family life, including marital relations, he sought 50,000 yuan in mental damages, striving for comprehensive relief for the plaintiff's personal injury. Facts have proven that the legal basis and amount of mental damages proposed by lead attorney Wang Tengfeng in this case gave the plaintiff a favorable position in subsequent settlement negotiations, resulting in a relatively satisfactory compensation.

(Compiled and commented by Guo Tianxi)

Guangdong Zhiming Law Firm

Office

　　2001-7-17