Original title: Rescue for more than 48 hours can not be identified as a work-related injury? Lawyer: “brain death” can be used as a criterion
Jimu News reporter Zhao Delong
Recently, a dispute over the identification of a work-related injury has attracted attention. In 2021, the night shift guard of a company’s mail room in Harbin suffered a sudden headache. After 120 rescues, he died on a ventilator to maintain his breathing and heartbeat for more than 48 hours. According to Article 15 of the Regulations on Industrial Injury Insurance, an employee who dies of a sudden illness or dies within 48 hours due to an ineffective rescue during working hours and positions shall be regarded as a work-related injury. The employee’s family and his unit have disputes over whether the employee’s death is a work-related injury.
Jimu journalists noticed that the above case is not the first in the country, but the judgments are not the same. In this regard, the lawyer stated that in order to protect the legitimate rights and interests of workers, it is not appropriate to give an unfavorable explanation to the worker when identifying work-related injuries. Brain death indicates that his death is irreversible, and continuous treatment can only delay the time of clinical death. “Brain death” is the criterion for judging death.
There have been many similar cases across the country
According to media reports on June 15, at about 4:30 a.m. on March 12, 2021, Ma Dianchen, a night shift guard in the mail room of a heating company in Harbin, suffered a headache in the mail room on the first floor of the unit and was sent to Harbin via 120 The First Affiliated Hospital of Medical University was admitted at 5:36 on the same day, and died at 18:48 on March 14. The time from admission to death was about 61 hours. In fact, a few hours after Ma Dianchen was sent to the hospital, doctors concluded that he was brain-dead and could only rely on a ventilator to maintain his vital signs.
Mailroom when Ma Dianchen was sick
On June 23, 2021, the Harbin Human Resources and Social Security Bureau issued a “Decision on Rejection of Work Injury Recognition” to Ma Dianchen. Subsequently, the family sued several times on the matter, but all were dismissed by the local court.
Jimu reporters noticed that similar cases are not the first in the country. In February 2020, Li Moumou, a security guard of a company in Guangzhou, suddenly fell ill in the early morning. After being sent to the hospital for treatment, the doctor clearly informed the family and the company that “the patient has irreversibly brain-dead”, but his family still insisted on rescue. After Li Moumou’s death, the local social security bureau and the district government refused to identify the work-related injury on the grounds that the rescue time exceeded 48 hours. His wife defended her rights through legal means and requested to revoke the “Decision on Disapproval of Work Injury Recognition” and related administrative reconsideration.
In 2016, a staff member of the Housing and Urban-rural Development Bureau of a county in Guangxi was assigned by the unit to participate in a conference outside the country. On the way back, he suddenly fainted and lost consciousness. After being sent to the hospital, the doctor diagnosed brainstem hemorrhage and respiratory arrest, and was given tracheal intubation, ventilator-assisted breathing and other treatments. After many days of rescue, Liang Moumou had no chance of improvement, and his family gave up treatment. However, Liang Moumou’s death was also not identified as a work-related injury by the local human resources and social security department. After his family appealed to the court, the court upheld the family’s claim in the first instance.
The procuratorial organ believes that Liang Moumou had been diagnosed with brain stem hemorrhage and respiratory arrest on the day of the onset, and he always needed to rely on equipment to give breathing and circulatory life support, and after more than 10 days of continuous rescue, he could not improve, and he was unplugged for 5 minutes after the ventilator. then died. In the case that the law does not clearly stipulate the standards for determining death, it should be interpreted from the standpoint of protecting employees, and it should be determined that Liang Moumou is regarded as a work-related injury. In the end, the court ruled that the original judgment of the first instance was upheld.
Lawyer: “Brain death” can be used as a criterion for judging death
Should the criteria for determining work-related injuries be “brain death” or “clinical death”? When should the “48 hours” stipulated in the “Work Injury Insurance Regulations” start to be counted?
Attorney Wang Wen from Zhejiang Rongzhe Law Firm believes that “brain death” is a medical term. As far as my country’s judicial practice is concerned, in a large number of criminal and civil cases involving the criteria for determining the death of citizens, the standard of “cardiopulmonary death” has been adopted. “Cardiopulmonary death” means that a person has lost the function of the heart and lungs and is legally declared dead. However, with the development of medicine, even if the cardiopulmonary function is lost, life can be artificially maintained for a long time with the help of advanced medical technology and medical equipment. Therefore, when the individual’s breathing and circulatory functions stop and cannot be rescued, or all functions of the brain stem stop, they can also be declared dead, and “brain death” is the standard for declaring death.
Wang Wen stated that Article 3 of the Ministry of Labor and Social Security’s “Opinions on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance” (Lao She Bu Han  No. 256) stipulates that Article 15 of the Regulations stipulates that employees “are Working hours and positions, death from sudden illness or death within 48 hours after ineffective rescue” is regarded as a work-related injury. If “brain death” is used as the death standard, even if the family members continue to rescue for humanitarian reasons, the paradox of “giving up treatment is too inhumane, but it can be recognized as a work-related injury; if the rescue continues, once the rescue is invalid, it cannot be recognized as a work-related injury” paradox. . Therefore, such incidents should return to the identification of “work injury” itself. As long as the worker is injured due to engagement and work, it is a work-related injury. This kind of regulation is closer to people’s actual perception of work-related injuries, and can avoid ethical risks to the greatest extent, and there will be no situation of different judgments in the same case.
According to a report from the Rule of Law Weekend, my country’s laws currently do not clearly stipulate the criteria for judging death. In order to protect the legitimate rights and interests of workers, it is not appropriate to make unfavorable explanations for workers when determining work-related injuries. When brain death occurs, the death is irreversible, and continuous treatment can only To delay the time of clinical death, “brain death” should be used as the death judgment standard when identifying work-related injuries. The starting time of “48 hours” should be the time when the medical institution makes the first diagnosis opinion as the starting time for sudden illness. If the diagnosis certificate issued by the hospital several months after death is inconsistent with the original medical record, it should not be regarded as valid evidence.