Research On Crime Of Medical Accident

As other accidents in professional action such as traffic accident, medicalaccidents take place constantly in society. These medical accidents are, for themost part, given rise to the action of violating rules and regulations of medicaltreatment by medical matters workers. Medical accidents intrude health rightsof patients and orders of manage to medical actions. It is important to apply allmethods, special law method, to prevent medical accident. Penalty is theimportant part in law method. There is crime of medical accident in the CriminalLaw of the People's Republic of China enacted on Oct. 1, 1997. This is the first inour country. It plays an important positive role to prevent the medical accidentsand punish exactly crime of medical accident.But the researches in crime of medical accident are much shallow incriminal theory at present. There are many blank spots in criminal theory, so wecan't punish crime of medical accidents exactly in practice. I regard "Study onCrime of Medical Accident" as the title of my doctor degree thesis. I hope to fillthe blank spot in criminal theory and help to punish crime of medical accident inpractice.The main body of this thesis includes six chapters. I study also someproblems about the technical authentication to medical accident relevant to theidentification to the crime of medical accident in the ending of this thesis. I usethe traditional train of thought about study single crime. At first, I study thename and concept of crime of medical accident, and then, study the constituentelements of crime of medical accident, such contents include four chapters, andsuch contents are the main body of this thesis. The key-points of this thesis arethe studying on the objective elements of crime of medical accident andsubjective elements of crime of medical accident. At last, I study some problemsabout establishment of crime of medical accident and distinction between crimeof medical accident and some similar crimes. Because this thesis isn't textbook,so I study only on the disputed and difficult problems of crime of medicalaccident. Because I want not study comprehensively, so I don't study thecriminal obligation of crime of medical accident in this thesis.The content of the first chapter of this thesis is the summary to crime ofmedical accident. At first, I introduce simply the development of the stipulationin Criminal Law of our country of the crime of medical accident. The purpose ofthe introduction is finding the short-coming of the stipulation of crime of medicalaccident in Criminal Law of our country and finding the advantage of thestipulation of crime of medical accident in criminal law of abroad throughmaking an investigation of the development of the stipulation in criminal law ofthe crime of medical accident and making a comparison between crime ofmedical accident in China and in abroad. I also study the name and concept ofcrime of medical accident in the first chapter. Although many scholars think thatthe name of this crime is crime of medical accident, I think that the name of thiscrime is crime of medical accident due to negligence. Through making acomparison between the points of view about the concept of crime of medicalaccident of scholars. I think that the concept of crime of medical accident is thatmedical matters workers make the patients death or injure seriously patients'health in medical treatment because of negligence.The content of the second chapter of this thesis is the studying on the objectof crime of medical accident and objective of crime of medical accident. Thecontent of the first paragraph of the second chapter is studying on the object ofmedical accident. I think that the objects of the crime of medical accident arethat the order which government administer the medical treatment and the rightof life or the right of health in Criminal Law. But I think that the objects ofcrime of medical accident are that the right of life or the right of health and theorder which government administer the medical treatment in theory. Crime ofmedical accident ought to be belong to the crime of violating right of personalsecurity. The content of the second paragraph of the second chapter is studyingon the objective of crime of medical accident. I think that patient is the personwhich going to hospital accept medical treatment. The patient's identify isestablishment when the medical treatment contract is established. I don't thinkthat we ought to identify the patient from pure objectivism. If the doctor thinkshim as his patient, one will be patient.The content of the third chapter of this thesis is studying on the objectiveelements of crime of medical accident. The content of the first paragraph of thethird chapter is studying on the legality and professionalism of medicaltreatment. The negligent medical treatment is medical treatment also. The legaland professional negligent medical treatment is the criminal action of the crimeof medical accident. I different the criminal action of the crime of medicalaccident between the crime of illegal medical treatment. I think that we ought toidentify the legality by signal medical treatment. Professionalism means thatmedical workers carry out the work which his unit endow him. The content ofthe second paragraph of the third chapter is studying on medical treatment. Ithink that medical treatments have four specific features. The first specificfeature is that medical workers do medical treatment out of medical aim. Thesecond specific feature is that the medical treatment's standard is medicalknowledge. The third specific feature is that medical treatment's objective ishuman's body. The fourth specific feature is that the medical treatment's resultis making the human's body's form change or recover. The content of the thirdparagraph of the third chapter is studying on the "neglect seriously". I think thatthe "neglect seriously" means that medical workers violate the medicalinstitution and medical convention in medical treatment, and don't carry out orcarry out erroneously his medical duty. After analyzing the short-coming of"neglect seriously", I suggest that we ought to replace "violate the medicalinstitution and medical convention" to "neglect seriously". The content of thefourth paragraph of the third chapter is studying on the meaning of the "injureseriously patient's health". I think that it means serious injury only. I suggestthat replace "make patient's serious injury" to "injury seriously patient'shealth". The content of the last paragraph of the third chapter is studying on therelationship of the causes and effects of the crime of medical accident. I study therelationship of the causes and effects of crime of omission, several negligentmedical treatment injure patient's health but we can't identify which one makethe injury, and so on. I think that even if without negligent medical treatment,the medical treatment and patient's special physique would make the injury,then we don't think there is relationship of the causes and effects between thenegligent medical treatment and injury. The injury that is made by the negligentmedical treatment under the patient's special physique bigger than the injurythat is made by the negligent medical treatment without the patient's specialphysique, I think that there is relationship of the causes and effects of crime ofomission in the negligent medical treatment and the bigger injury. I suggest thatwe ought to use the method of statistics identify the relationship of the causesand effects of crime of medical accident.The content of the fourth chapter of this thesis is studying on the criminalwhich offence the crime of medical accident. I don't think the people who engagein logistics and administration in hospital belong to the criminal which offencethe crime of medical accident. The medical technical workers who have medicalknowledge and be approved engage in medical treatment by government. Whenthe person who engage in logistics and administration in hospital make patientserious injury or death, I think that we ought to punish them according to crimeof serious negligence or crime of make people serious injury or death due tocommon negligence. I also think that the medical students who have finished themedical theory studying, are sent to hospital by his medical school also belong tothe criminal which offence crime of medical accident.The content of the fifth chapter of this thesis is studying on the subjectiveelements of crime of medical accident. The content of the first paragraph of thefifth chapter is the summary to the subjective elements of the crime of medicalaccident. The content of the second paragraph of the fifth chapter is studying onattention obligation. The content of the attention obligation is "the best attentionobligation". In this thesis, I also list some common violations to attentionobligation. I think that the bases of the attention obligation are law, medicalconvention and the content of medical books. The content of the third paragraphof the fifth chapter is studying on attention ability. I think that if a commonmedical worker which engaging in the same medical action has attention ability,then the medical worker which we judging has attention ability also. I think thatwe ought to adopt the subjective standard when the medical worker's attentionability higher than other attention ability of the medical worker which engagingin the same medical action. The content of the fourth paragraph of the fifthchapter is studying on the judgment in negligence in medical treatment. I thinkthat we ought to use the popular medical level in practice as the standard whichjudgment in negligence in medical treatment. I think that we ought to notice thedifferent hospitals and different medical workers and different medical actionsand so on when we judge the negligence in medical treatment. The content of thefifth paragraph of the fifth chapter is studying on several problems in connectionwith judging negligence in medical treatment. I think that medical worker isnegligence if he does not carry out his duty to send his patient to other betterhospital. I think that we can free the medical worker's duty due to negligenceusing the trust fundamental rule. I think that we ought to establish the commonnegligence in medical treatment in criminal theory.The content of the sixth chapter is studying on the judgment in the crime of medicalaccident. The content of the first paragraph of the sixth chapter is studying on theestablishment of the crime of medical accident. I think that there is the space of applying thecrime of medical accident in medical rescue action. I think that medical worker will becriminal accident when he makes his patient serious injury or death due to negligenceelements and technique elements. If patient makes the erroneous medical decision due tomedical worker does not carry out or does not carry out correctly his duty of information,medical worker will be criminal of crime of medical accident also. The content of the secondparagraph of the sixth chapter is studying on the difference between crime of medicalaccident and several similar crimes. The main body of this paragraph is studying on thedifference between crime of medical accident and crime of illegal medical treatment.At last, I also study some questions in connection with the technicalappraisement to medical accident in the criminal action of the crime of medicalaccident. I think that what the conclusion of technical appraisement to medicalaccident identify medical worker's action establish medical accident due tonegligence isn't the prerequisite that we identify medical worker is criminal ofcrime of medical accident. I don't approve that replace appraisement by legalmedical expert to technical appraisement to medical accident. I think that thetechnical appraisement to medical accident in the criminal action of the crime ofmedical accident ought to be made by the medical studying meeting that isselected by the jurisdiction institutes. I think that the technical appraisement tomedical accident which is made by the medical studying meeting only appraisethe problems in pure medical science. I think that the prerequisite whatappraisement by legal medical expert is the conclusion of technical appraisementto medical accident identify medical worker's action establish medical accidentdue to negligence. I think that the appraisement by legal medical expert onlyappraise the problems which in connection with the affirming the grade of theinjury that is made by the negligent medical treatment. I think that the technicalappraisement to medical accident isn't restricted by the content of the statute ofmanaging to medical accident.