Can the various exemptions of the nursing home exempt itself from liability?
Case 17Brief facts of the case
On August 29, 2018, a pension apartment signed the "Pension Service Contract" with Zhang's father and his son Zhang (guardian). The exemption clause of the contract states: "The elderly all have different degrees of osteoporosis, and may have accidents such as soft tissue injury, fracture (disability), and death due to falls." ......The bedridden elderly all have varying degrees of hypoproteinemia or immune diseases, and are very prone to accidents. The staff has clearly informed the family of the potential risks, and the nursing home will not be liable for compensation if the above situation occurs. ”
On June 30, 2019, Zhang's father was hospitalized**, diagnosed with acute cerebral infarction, etc., and returned to a pension apartment on July 10 of the same year. On October 10, 2019, he was hospitalized again** and was diagnosed with pressure ulcers with infection, cerebral infarction, femoral neck fracture, etc. On January 25, 2020, the old man passed away.
Zhang believes that due to the poor care of a pension apartment, the elderly residents fell and suffered fractures, and suffered large-scale pressure ulcers on their bodies, which led to his death. Therefore, the lawsuit was filed with the court, requesting that a pension apartment be ordered to return the medical deposit and pay medical expenses, hospital meal subsidies, nutrition expenses, nursing fees, etc.
The Court's Opinion:
After the trial, the Beijing No. 2 Intermediate People's Court ruled that the old man was found to be suffering from a femoral neck fracture and bedsores while living in a pension apartment. Although the exemption clause of the "Pension Service Contract" stipulates that the elderly have suffered a fracture due to an accidental fall, or a pressure ulcer caused by hypoproteinemia or an immune disease, it does not exclude its nursing obligations, and a pension apartment should provide corresponding evidence to prove that the apartment has fulfilled the corresponding nursing obligations. However, the apartment failed to provide a reasonable explanation of the cause of Zhang's father's fracture, nor did it provide evidence to prove that the pressure ulcer was caused by his hypoproteinemia or immune function, so the court found that the pension apartment failed to perform the care services agreed in the contract, which constituted a breach of contract. Therefore, a pension apartment was ordered to pay medical expenses, hospital meal subsidies, nutrition expenses, nursing fees, etc., and return the remaining medical deposit after deducting the pension service expenses payable.
Lawyer's point of view:Unreasonably exemptStandard Clauses of Own ResponsibilityInvalid
In order to protect their own interests, many pension institutions will require family members to sign additional agreements, exemption agreements and other documents when accepting the elderly, and take the disability and death of the elderly as an exemption clause due to some accidents. After an accident occurs in a nursing institution, the nursing institution will shirk responsibility on this basis, claiming that it has written in the contract that the relevant circumstances will not be liable. So, how to determine the validity of such a form exemption clause?Can the pension institution be exempted from its liability for compensation on this ground?
In this case, the exemption clause of the pension apartment excludes its main obligations such as care and care, which is an "unreasonable exemption from liability", and the clause should be invalid.
1. A standard contract, also known as a standard contract or a standard contract, refers to a contract in which one of the parties drafts the terms of the contract in advance for repeated use and does not negotiate with the other party at the time of conclusion. Standard contracts are often used because they can simplify the contracting procedures and reduce the time for concluding the contract, thereby reducing transaction costs and improving the efficiency of production and operation. However, due to the fact that the content of the standard contract is drafted in advance and is not negotiable, the provider of the standard contract often writes in the contract the "overlord clause" that is relatively self-beneficial and unfavorable to the other party, such as unreasonably expanding the scope of its own exemption, stipulating that the other party must waive certain rights, etc. Therefore, the Civil Code restricts standard contracts.
Article 497 of the Civil Code: In any of the following circumstances, the standard clause is invalid: (1) it has the invalid circumstances provided for in Section 3 of Chapter 6 of Part 1 of this Law and Article 506 of this Law;(2) The party providing the standard clauses unreasonably exempts or reduces its liability, increases the liability of the other party, or restricts the main rights of the other party;(3) The party providing the standard clauses excludes the main rights of the other party.
Article 506 The following exemption clauses in the contract are invalid: (1) causing personal injury to the other party;(2) Intentionally or grossly negligently causing damage to the other party's property.
2. The court's adjudication view on the standard clause: if the party providing the standard clause exempts its liability, increases the liability of the other party, or excludes the main rights of the other party, the clause is invalid and has no legal effect. If it cannot be proved that the obligation to ensure safety within a reasonable range has been fulfilled, and it cannot be proved that the danger has been stopped in time to prevent the consequences from expanding, the person shall be liable for damages. If the court finds that the elderly care institution has defects or negligence in management, equipment, services, etc., then the elderly care institution still bears the corresponding liability.