[Direct answer]The subject of responsibility is often not just one person. It should be determined based on the chain of who kept the drugs, who sold them, and who was in charge during the period when the drugs were swallowed. If an adult's medication at home is mistakenly ingested by a child, and the keeper failed to fulfill his duty of proper custody, he shall bear fault liability in accordance with Article 1165 of the Civil Code of the People's Republic of China (effective January 1, 2021); if it occurs during the custody of childcare institutions or kindergartens, their management responsibilities shall be reviewed in accordance with Articles 1199 and 1200; if the pharmacy fails to sell adult prescription drugs with a prescription, it shall be held accountable in accordance with the laws on drug management; if there are defects in the drug packaging or instructions, the producer or seller may be claimed for product liability. If the guardian himself is negligent in supervision, the other party's compensation share shall be correspondingly reduced.

I. Problem Background and Typical Scenarios

Misuse of medication often occurs in rooms that adults mistakenly believe are well-secured. The first scenario involves parents placing blood pressure-lowering medication, diabetes medication, and sleeping pills in bedside cabinets, handbags, or TV cabinet drawers, which children can reach by standing on a small stool. The second scenario involves elderly people dividing pills into paper cups or medicine box lids while turning to pour water, only to have the pills swallowed by children in the meantime. The third scenario involves children temporarily left with relatives, neighbors, or babysitters, who may not be aware of the children's age and behavioral habits and treat medicine bottles as ordinary clutter. The fourth scenario involves children retrieving medication from their backpacks or pockets during morning check-ups or naptime at childcare centers and kindergartens. The parties involved in each scenario are completely different: the first scenario implicates the guardians themselves, the second scenario implicates cohabiting adults, the third scenario implicates entrusted caregivers, and the fourth scenario implicates educational institutions. There is also a category often overlooked: pharmacies selling adult prescription drugs to third parties who do not have guardianship status, or delivering high-concentration external solutions as ordinary medicinal water, which also place the sellers in the liability chain. Only by accurately defining the scenarios can we discuss who should be compensated and how much compensation should be provided.

II. Key points of dispute

The disputes focus on three aspects. First, the reasonable boundaries of the obligation of custody. The law does not require families to lock medicines in safes, but it requires adults to take necessary measures according to the nature of the medicines and the age and mobility of the children. Placing pills on the coffee table within the children's reach differs greatly from placing them in locked drawers in terms of the degree of fault. Second, the causality and participation. Which type of medicine the child swallowed, the dosage, the consequences of poisoning, and the attribution of underlying diseases all depend on blood drug concentrations, gastric lavage records, and the remaining drug quantities. If there are misdiagnoses or delays in gastric lavage during the treatment process, the fault of the medical institutions will be added to the causal chain, and the compensation ratio will be accordingly divided. Third, the concurrence of liabilities and the apportionment of responsibility. The same damage may simultaneously constitute the negligence of guardians, the breach of contract by caretakers, the violation of regulations by sellers, and the product defects of producers. The plaintiff can sue according to the infringement or the product liability, but the guardian's own fault will reduce the share of other parties according to Article 1173 of the Civil Code of the People's Republic of China (effective January 1, 2021).

III. Professional analysis by Hengluo Lawyers

When handling the case, the first step is not to calculate the compensation amount, but to reconstruct the entire process of obtaining the drugs. Obtain the original packaging of the drugs, aluminum foil sheets, instructions for use, and purchase receipts, and check the batch numbers and expiration dates to confirm whether they belong to the categories that must be sold with a prescription. Retrieve surveillance footage from home or childcare institutions to verify the time points when the child came into contact with the drugs and the adults present. Copy the emergency medical records, gastric lavage records, and blood gas and drug concentration reports to determine the degree of poisoning. For possible delays in treatment, separately seal the outpatient medical records and medical orders. After all the above materials are in place, determine whether it is necessary to commission an appraisal: for cases involving the fault of medical institutions, apply for an appraisal of the fault and causality of medical damage; for cases involving packaging defects, apply for an appraisal of whether the packaging meets children's safety requirements and whether the instructions for use provide sufficient warnings. In terms of litigation strategy, if the custodian and the seller belong to different entities, they can be sued together first and then share the liability according to the identified proportion, or the claim can be asserted against the party with stronger compensation capacity first, allowing the latter to exercise the right of recourse. The claim items shall be listed in accordance with the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases" (amended on February 15, 2022). Medical expenses, nursing care fees, and nutritional expenses must be supported by receipts, and the disability compensation shall be calculated separately for those who have suffered from disability.

IV. Practical suggestions and legal basis

The legal basis is divided into three layers. Article 1165 of the Civil Code of the People's Republic of China (effective from January 1, 2021) establishes fault liability, and Article 1179 lists compensation items such as medical expenses, nursing fees, transportation fees, nutrition fees, hospitalization subsistence allowances, loss of earnings, and disability compensation. Article 1199 applies the presumption of fault to victims in educational institutions who lack capacity for civil conduct, Article 1200 imposes fault liability on those with limited capacity for civil conduct, and Articles 1202 and 1203 grant victims the right to choose between the producer and the seller. The Drug Administration Law of the People's Republic of China (effective from December 1, 2019) mandates that prescription drugs must be sold with a prescription and requires pharmaceutical technicians to provide guidance on medication use. Violators will bear administrative responsibility and their actions may also be used as evidence of their fault. Article 188 of the Civil Code of the People's Republic of China (effective from January 1, 2021) stipulates a three-year statute of limitations, which begins from the date when the victim or his/her legal representative knows or should have known about the infringement of his/her rights and the identity of the obligee. Materials should be prepared in five groups: drug samples and packaging, purchase receipts and sales records, medical records of treatment and rescue, on-site surveillance and statements from witnesses, and explanations and testimonies of family care. If seeking disability compensation after the injury stabilizes, an appraisal should be applied for as soon as possible after the conclusion of treatment. For the detailed procedures, please refer to our firm's guidelines.Legal services for personal injury and medical disputesA description of the page's flow process.

5. Henglu Law Firm's Reminder

Three procedural mistakes are most likely to result in reduced compensation. First, throwing away the medicine bottle and remaining pills. The drug name, batch number, and dosage are the starting points for determining fault and causality. Without physical evidence, it's only possible to make speculative judgments, and appraisal institutions often cannot provide clear opinions. Second, focusing solely on the pharmacy or the supervisor. A single defendant has a large defense space, and once other parties in the chain are absent, it's difficult to apportion responsibility. Third, rushing to sign a one-time settlement agreement. Children's poisoning may leave neurological sequelae that aren't noticeable in the early stages. When the case is appraised as a disability later, the absence of other dispute clauses in the agreement will become an obstacle. It's also important to remember the time points: the three-year statute of limitations starts from the date the victim discovers the infringement of their rights and the date the obligee becomes aware of it. The longer the delay, the higher the probability that surveillance footage will be overwritten, medical records will be archived, and witnesses will move away. After discovering that a child has ingested medication by mistake, it's more effective to first preserve the medicine bottle, record the time, and take the remaining medication to the hospital than to first inquire about who is responsible.

VI. Frequently Asked Questions

Q1: If a pharmacy sells adult prescription drugs without a prescription, can it be listed as a defendant in the lawsuit?

They can be listed as defendants, but it is necessary to distinguish between two roles. If the pharmacy knowingly sells adult prescription drugs to people who do not have guardianship status, it violates the regulations on selling drugs by prescription and is at fault. It can claim compensation according to Article 1165 of the Civil Code of the People's Republic of China (effective from January 1, 2021). If there are defects in the packaging and instructions of the drugs themselves, the producer and seller can be sued according to product liability. The lawsuit needs to prove three points: that the act of purchasing the drugs actually occurred, that the drugs are consistent with the components detected in the child's body, and that there is a causal relationship between the pharmacy's violation and the damage. If there is only indirect evidence that the pharmacy sold the drugs, the court usually does not order it to bear the main responsibility, but handles it according to the principle of supplementary liability.

Q2: After swallowing the medicine by mistake, what pieces of evidence should be preserved, including the remaining tablets and the packaging?

Five items should be preserved in order: First, the outer packaging boxes and aluminum foil boards of the drugs, on which the name, specification, batch number, and expiration date are the first-hand basis for judging the type and dosage of the drugs; Second, the instruction manual, with a focus on the warning statements and the section on pediatric medication; Third, the remaining tablets or syrups, which should be placed in a clean sealed bag and not washed; Fourth, the records of preserved vomit and gastric lavage fluid, which should be noted by the hospital in the medical records; Fifth, the purchase receipts, prescription forms, or screenshots of online orders. The above-mentioned evidence should be handed over to the doctor for review when admitted to the hospital, and the medical records should be copied and sealed afterwards. If the drugs have been discarded, the proof can be inferred from the blood drug concentration report and emergency medication records, but the evidentiary value will obviously decrease.

Q3: If a lawsuit is filed based on the total amount of compensation, how is the filing fee calculated in stages and cumulatively?

According to the standard paragraphation of property cases and calculated in accordance with Article 13 of the "Measures for the Payment of Litigation Costs" (implemented on April 1, 2007): for cases involving no more than 10,000 yuan, a fee of 50 yuan per case shall be paid; for cases involving between 10,000 yuan and 100,000 yuan, a fee of 2.5% of the amount shall be paid; for cases involving between 100,000 yuan and 200,000 yuan, a fee of 2% of the amount shall be paid; for cases involving between 200,000 yuan and 500,000 yuan, a fee of 1.5% of the amount shall be paid; and for cases involving between 500,000 yuan and 1 million yuan, a fee of 1% of the amount shall be paid. Taking a claim of 300,000 yuan as an example, the acceptance fee would be approximately 5,800 yuan, which shall be prepaid by the plaintiff at the time of filing the case. The burden of the fee shall be determined according to the outcome of the case. For cases handled through summary procedures, the fee shall be halved. Those who are financially difficult may apply for deferral, reduction, or exemption of the fee, and shall submit proof of their income and property status.

Q4: When does the three-year statute of limitations for drug poisoning claims begin to count from?

According to Article 188 of the Civil Code of the People's Republic of China (effective January 1, 2021), the statute of limitations period is three years from the date when the right holder knows or should have known that their rights have been infringed and the obligee's identity is determined. Although the right holder may become aware of the infringement on the day the child is sent to the hospital, the obligee often needs to retrieve surveillance footage and investigate the source of the medication before confirming the specific circumstances, which may result in a delayed starting point for the statute of limitations. For injuries with latent symptoms or sequelae that manifest years later, the right holder may claim additional compensation for follow-up treatment. Minors lack the capacity to litigate, and the statute of limitations period is exercised on their behalf by their legal representatives, with the rules on suspension and interruption of the statute of limitations applying as usual. If the statute of limitations exceeds three years without any interruption events, and the other party raises a statute of limitations defense, the court will no longer protect the right holder's rights.

Q5: Before taking the child to the hospital after they swallow something by mistake, should we induce vomiting first or keep the vomit for later analysis?

Neither of them should be the first action. First, determine the nature of the medication and then make a decision. If you accidentally swallow strong acids, strong alkalis, petroleum-based liquids, or sharp pills, inducing vomiting may cause secondary burns or scratches to the esophagus, so it is prohibited to induce vomiting on your own. If you accidentally swallow ordinary tablets and the child is conscious and the swallowing time is within half an hour, you can handle it under the guidance of a doctor by phone. In any case, the first step is to take the medicine bottle, remaining pills, and vomit to the nearest emergency room. Do not drink large amounts of water or milk to dilute them during the journey. After arriving at the hospital, actively inform the doctor of the drug name, dosage, and swallowing time, so that the doctor can decide whether to perform gastric lavage, use activated charcoal, or administer antidotes.

The above answer is based on the judicial practice in Beijing. The judicial interpretation in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Personal injury legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In case of disputes, please consult a practicing lawyer in time.