Unable to determine work injury for rescue for more than 48 hours?Lawyer: "Brain Death" can be used as a criterion for identification

Jimu Journalist Zhao Delong

Recently, a dispute of a work injury has attracted attention. In 2021, a headache in a return room of a company in Harbin had a headache. After 120 rescue, the ventilator was rescued to maintain his breathing and heartbeat for more than 48 hours. According to Article 15 of the "Regulations on Work Injury Insurance", employees who die in their working hours and jobs, dies or die within 48 hours, are deemed to have worked injuries. The family members of the employee and their units, whether the death of the working worker is a dispute over work injury.

Jimu reporters noticed that the above cases were not the first case in the country, but the judgment was different. In this regard, the lawyer stated that in order to protect the legitimate rights and interests of the workers, it is not advisable to explain the laborer when the work injury is determined. When the brain death, it shows that its death is irreversible. Continuous treatment can only delay clinical death. "Brain Death" is the criterion for judgment of death.

There have been many similar cases in the country

According to media reports on June 15, at 4:30 am on March 12, 2021, the gatekeeper of a heating company in Harbin, a heating company in Harbin, had a headache in the sending and sending room on the first floor of the unit. The First Affiliated Hospital of Medical University was admitted to the hospital at 5:36 that day, and died at 18:48 on March 14. From admission to death, about 61 hours. In fact, after a few hours after Ma Dianchen was taken to the hospital, the doctor concluded that he had died his brain and could only maintain his life signs by the ventilator.

The sending room of Ma Dianchen when the onset

On June 23, 2021, the Human Resources and Social Security Bureau of Harbin City made the "Decision on No Wounds" on Ma Dianchen. Subsequently, the family members repeatedly sued the matter, but were rejected by the local court.

Jimu Journalists noticed that similar cases were not the first case in the country. In February 2020, the security guard Li Moumou suddenly developed in the morning in Guangzhou. After the treatment of the hospital for treatment, the doctor clearly informed his family members and the company that "the patient had no reversal brain death", but his family still insisted on rescue. After Li Moumou's death, the local social security bureau and the district government refused to identify work injuries on the grounds of rescue time for more than 48 hours. His wife defended his rights through legal means and requested the revocation of the "Decision on the Decision of Work Injury" and the relevant administrative reconsideration. The first instance and the court of the second instance both supported that the work injury should be determined.

In 2016, the staff of the Housing and Urban Construction Bureau of Guangxi was assigned to attend the meeting by the unit. During the return journey, they suddenly fainted and lost their consciousness. After being taken to the hospital, the doctor diagnosed the brain stem bleeding, stopping the breath, and the tracheal intubation, ventilator auxiliary respiratory treatment. After many days of rescue, Liang Moumou had no possibility of improvement, and his family gave up treatment. However, Liang Moumou's death was also not identified as a work injury by the local people's social department. After his family appealed the court, the court supported his family members' claims in the first instance.

The procuratorial organs believe that Liang Moumou has been diagnosed with brain stem bleeding and stopping breathing on the day of the onset, and always needs to rely on equipment to give breathing and circulating life support. After continuous rescue for more than 10 days, he cannot improve. He died later. In the case of laws that do not clearly specify the criteria of death, it is necessary to explain from the position that is conducive to protecting employees, and determine Liang Moumou as a work injury. In the end, the court judged that the first trial was maintained.

Lawyer: "brain death" can be used as the criterion for death judgment

Should the judgment criteria determined by work injury should be based on "brain death" or "clinical death"? When will the "48 hours" stipulated in the "Work Injury Insurance Regulations" be calculated from?

Lawyer Wang Wen of Zhejiang Rongzhe Law Firm believes that "brain death" is a medical term. From the perspective of my country's judicial practice, in a large number of criminal and civil cases involving the criteria of citizen's death, the standard of "cardiopulmonary death" is adopted. "Cardiopulmonary death" means that people have lost their cardiopulmonary function and declare their death legal. However, with the development of medicine, even if the cardiopulmonary function is lost, life can be carried out for a long time with the help of advanced medical technology and medical equipment. Therefore, when the personal breathing and circulation function stops, there is no irreversible, or all the functions of the brain stem stop can also declare death.

Wang Wen said that the Ministry of Labor and Social Security's "Opinions on the Implementation of the" Regulations on the Injury Insurance "(Opinions of the Regulations on Work Injury" (Article 3 of the Ministry of Labor News Agency [2004] No. 256) stipulates that Article 15 of the Regulations stipulates that the employees are "in Working hours and jobs, dying of sudden diseases or dying within 48 hours "are deemed to be a work injury. If "brain death" is used as the standard of death, even if family members continue to be rescued from humanitarianism, they will not appear "abandoning treatment, too inhumane, but can be identified as work injury; continuing to rescue, once the rescue is ineffective, it cannot be determined by work injury" paradox. " Essence Therefore, such incidents should return to the "work injury" identification itself. As long as the workers are injured in and work, they are workers. This regulation is closer to the actual awareness of people's injuries, can avoid ethical risks to the greatest extent, and there will be no different judgments in the same case.

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