Research On Medical Negligence From The Perspective Of Criminal Law

Medical disputes in our country are growing rapidly and becoming worse at present, they have turned into a focus of society currently, tensions between doctors and patients are widely recognized now, the trust between them has dropped to bottom. Therefore, how to solute medical disputes reasonably and effectively in the goal of pursuing social harmony has become a major problem to ease social conflicts and maintain social stability. According to statistics, there are kinds of reasons for stimulating medical disputes nowadays, one of the main reasons is the frequent occurrence of medical incidents, and a large part of these incidents are caused by breaking rules which are committed by medical institutions and medical professionals. Currently, the main way to solve medical incident disputes is to have medical institutions bear civil responsibilities for medical damage compensation, and to bear administrative responsibilities such as ordering to suspend business or revoking practicing certificate is relatively less, the situation to investigate criminal responsibilities is much less, it leads to that "the crime of medical accident" in1997s’criminal law is almost useless in practice, which is aimed to punish medical negligence. That is to say, over relying on civil compensation and ignoring the connection and cooperation of civil responsibilities, administrative responsibilities and criminal responsibilities, especially ignoring the function of criminal law to regulate medical negligence and prevent medical accident, is the current situation and problem of medical regulations in our country, and it is also the main reason for preventing medical incidents and reducing medical disputes inefficiently.Currently, criminal law can not play its part in regulating and preventing medical accidents, this dues to many reasons, and the way to change this situation thoroughly shouldn’t simply be relying on criminal law. But it doesn’t mean we can’t find any solution within the reach of criminal law. From the perspective of criminal law, medical accidents belong to the category of vocational negligence crime, so a systematic and deep research on the core element of medical negligence has vital significance for the criminal law regulations on medical accidents. Specific provisions of criminal law in our country have set up the crime of medical accident to punish medical negligence, therefore, the element of medical negligence should be discussed here, which is also a common practice in theory circle. However, the research significance of medical negligence from the perspective of criminal law is not confined to the cognizance of medical accident crime, and this research method will lead to a lack of system and depth. For that reason, this article will base on the basic theory of criminal law, and carry out a more comprehensive, systematic and in-depth research on the element of medical negligence closely, but not referring to other problems on medical negligence crime, such as the legitimacy of medical conduction and medical subject, causation, harmful consequences, and identification of medical accidents, unless it is necessary.Different from most research pattern in mainland China, this paper attempts to do a more detailed research basing on the establishment of theoretical system of criminal medical negligence. This theoretical system includes four parts:the overview of medical negligence, the medical negligence ontology, the identification theory of medical negligence, and the limitation theory of medical negligence. The whole article is divided into five chapters, except the first chapter being introduction, the second chapter to the fifth chapter correspond to the four parts separately.The first part (the second chapter) is the overview of medical negligence, this chapter is divided into two parts. Medical negligence occurs in the process of medical acts, at same time, the characteristics of medical act have great influence on the definition of medical negligence. Therefore, The first section discusses the concept and characteristics of medical act above all. This paper argues that the medical act and medical similar behavior should be distinguished firstly, then on this basis, according to having medical purpose or not, the medical act could be divided into narrow and broad senses. This article bases on the broad sense. But because the narrow sense is more universal and typical, the theoretical discussions and case studies in the following article will mainly base on the narrow sense. After defining the concept of medical act, we discuss some features of medical act that have influence on cognizing medical negligence, they are dangerousness, usefulness, professionalism and uncertainty.The second section mainly discusses the concept and classification of medical negligence. Firstly, this paper argues that medical negligence should be defined as: feason doesn’t implement duty of care that is aimed to protect the medical treatment in the process of specific medical act. It means that the subject of criminal medical negligence doesn’t include medical institutions, and the situation that medical professionals don’t implement duty of care out of the process of specific medical act is not medical negligence also. Secondly, we discuss the classification of medical negligence. Medical negligence can be classified from different angles, we choose two kinds of classifications to discuss thoroughly, which have general guiding significance to the criminal regulation of medical negligence, they are:purely technical negligence and medical judgment negligence, medical liability negligence and medical technical negligence. Among them, the first classification is the foundation and starting point of theory system of criminal medical negligence, and this article will also relate this classification to analysis and argument, that means criminal law should focus on the regulation of purely technical negligence, but to the medical judgment negligence, criminal law should only regulate those whose leechcraft are below the medical standard obviously.The second part (the third chapter) is the ontology of medical negligence, it is divided into four sections. This part is about the basic theory and general theory of medical negligence, it is an abstract and summary of medical negligence, therefore, this part has general guiding significance to the specific definition of medical negligence.Fundamentally, medical negligence is a kind of unpremeditated crime, so the basic standpoint of unpremeditated crime theory will directly determine how to analyze and demonstrate related issues, and what kind of view being held. Based on this, the first section discusses the basic standpoint of unpremeditated crime theory in civil law countries, and concludes that new unpremeditated crime theory is more reasonable relatively, especially on the analysis of medical negligence. Although there isn’t opposite position of the basic standpoint of unpremeditated crime theory in our country, we think that the unpremeditated crime theory in our country is actually on the side of new unpremeditated crime theory after analysis. According to that, this article adopts the standpoint and views of new unpremeditated crime theory, basing on the theory of Act No Value Dualism.The second section combines the characteristics of medical field (medical acts) closely, and mainly discusses the content and basis of medical professionals’ duty of care. we discusses the duty of care for medical professionals in general sense, including result foreseeing obligation and result avoiding obligation. These obligations reflect the particularity of medical negligence, which is different from other negligence. Concerning the basis of duty of care, this section discusses the source and foundation of duty of care, which is closely related to protecting specific medical act.The third section mainly discusses medical professionals’ability of attention. This thesis believes that the judging standard should adopt compromise theory in ordinary negligence, but in the situation of professional negligence, especially medical negligence, it should adopt objectivity theory, which means that whether the harmful consequence could be foreseen and avoided or not should be judged on the base of the situation that the medical professionals could be aware of and the situation that the feason has special knowledge of in the time of the act, considering whether ordinary medical professionals could foresee and avoid this harmful consequence or not as the standard for judgment."Ordinary medical professionals" should be defined as:the medical staff working in the professional field which the medical act implemented by the feason belongs to, having the same or similar job title or status in the areas or the medical institutions with the same or similar medical conditions.The fourth section discusses the judging standards of medical negligence:medical level, discretion and urgency. Medical level is the general criterion of medical negligence, but its regional differences should be considered sufficiently. Discretion is mainly applicable to medical judgment negligence when using as criterion of medical negligence, and has the function of restricting the establishment of medical negligence. When using as criterion of medical negligence, urgency has the function of mitigating, but not exempting from medical professionals’duty of care in emergency circumstances and is a lower identification criterion.The third part is the identification theory of medical negligence (the fourth chapter), divided into five sections. To identify whether some acts of medical treatment have violated the related duty of care or not is the direct purpose of researching medical negligence, therefore, this part has more direct guiding significance in juridical practice. Medical negligence is the faults occurring during the participation or implementation of medical acts, so the specific medical act must be considered when identifying medical negligence. But as medical act has a great variety and continues to be subdivided with the development of medicine, it’s clearly unreal to explore all the faults occurring in the process of medical acts. Based on it, this chapter selects the acts of diagnosis, injection, transfusion, narcosis and operation which are easy to cause medical negligence in the practice as subjects of the study, summarizes the faults occurring during these medical acts, and explores the specific identification of medical negligence combining with specific cases. Specifically, diagnosis negligence in the first section generally includes faults in diagnosis process and faults in diagnosis content. Injection negligence in the second section generally includes faults made in judging the necessity and the timing of injection, faults of injection type and dosage, faults of injection site and method, faults in the disinfection of injection instruments, faults made in the observation after injection and so on. Transfusion negligence in the third section generally includes the negligence in the process of drawing blood and transfusing blood. Narcosis negligence in the fourth section generally includes faults in judging adaptability of narcosis, faults in choosing narcotic and narcotic method, technical operation faults in narcosis process, patient management faults after narcosis and so on. Operation negligence in the fifth section generally includes faults made in judging the necessity and the feasibility of operation, faults in judging the timing of operation, faults in choosing operation method, technical operation faults in operation process, patient management faults after operation and soThe fourth part is the restriction theory of medical negligence (the fifth chapter), divided into two sections. Former chapters have discussed medical negligence would be established under what circumstances in the positive way, and this part will research the impediment of illegality in the negative way. The reasons of impeding the establishment of involuntary crime theoretically include danger allowed theory, danger distribution theory and principle of reliance. With regard to danger allowed theory, the premise and the core essential is that medical professionals obey medical regulations and the diagnosing, treating and nursing routine. However, if these rules are obeyed, the violation of objective duty of care doesn’t exist at all, so unpremeditated crime is not established from the beginning. In other words, as a reason for impeding unpremeditated crime, danger allowed theory does not have independent meaning, therefore this chapter will not launch a separate discussion.The first section describes the applicable condition of the principle of reliance in medical negligence and focuses on the application problem of this principle. In consideration of the doctors’leading role in medical acts, this thesis divides the application of the principle of reliance in medical negligence into three situations to discuss—between doctors and patients, between doctors, and between doctors and other medical professionals. The principle of reliance is applicable in the first situation, but the application room is relatively small. The second situation could be divided into the horizontal division of medical work and the vertical division of medical work. The principle of reliance is applicable in the former relationship while restricted in the latter relationship respecting the problem of supervision negligence. In the third situation:(1) Whether the principle of reliance is applicable between doctors and nursing staff depends on the specific content of the medical act;(2) The principle of reliance is applicable between doctors and pharmacists if there is separation of dispensing from prescription;(3) The principle of reliance is applicable in principle between doctors and Laboratory staff.The second section firstly evaluates and analyses the various theoretical bases on which the victim’s bearing of danger can obstruct the unpremeditated crime, and show the view that I agree with—the theory of self-responsibility. Based on it, this section explores the application of victim’s bearing of danger in medical negligence. Specifically, at first illuminates the relationship between the bearing of danger and the agreement of patients, and points out that the bearing of danger can obstruct the establishment of medical negligence only on the occasion that the object of medical act bears danger not allowed. Then it discusses the general essentials needed when the theory of victim’s bearing of danger is applicable in medical negligence. Last, it discusses specific situations when victim’s bearing of danger is applicable, including the occasion that another person puts the victim in danger under the agreement between he and the victim, and the occasion that another person joins the victim’s act which puts the victim in danger.