Criminal Liability For Medical Negligence Under The Influence Of Team Division

Although the Criminal Law of China added the 335th medical malpractice when it was amended in 1997,but in the judicial practice of 30 years,there have been phenomena that the number of cases identified is small,the trial is difficult to determine.As for the medical staffs that are responsible for medical negligence,they are also showing signs of suffering in the intensified contradictions between doctors and patients.It seems that in the face of medical negligence,judicial workers believe that the referee is difficult,the patients believe that their right to life and health is being impaired,and that medical staffs try to evade responsibility by adopting“defensive medical care”and“excessive inspections”.Under this unsatisfactory situation,the determination of the criminal responsibility for medical negligence as the last punishment method in the legal norms has become a dilemma.Through the analysis of the 95 cases of“medical malpractice criminal cases”in the "Pkulaw database" and cases of serious injuries and deaths caused by medical malpractices in Germany recent years,it has been found that the pattern of medical behavior as the object of medical negligence has been principle divided into teams and individual implementation as an exception,this medical condition is completely different from that of the 1990s.Judicial workers can't get a correct conclusion if they do not evaluate medical crimes in the division of labor.In order to solve the difficulties in judicial practice and to correctly apply the criminal responsibility of the perpetrator of the crime of medical malpractice,this article mainly uses the analysis method combining empirical research with dogmatic to“seek the dilemma-discover difficult problems-solve disputes",in order to determine the impact of team medical division of labor on medical negligence liability judgment.Most of the scholars in China adopt the following research mode for criminal liability for medical negligence:attempting to determine the medical behavior and the duty of care of medical personnel through detailed enumeration in objective terms—analyzing the difference between different doctrines in causality—categorizing the medical personnel as the subject of the crime for criminal subjects—examining subjective attitude of actors with traditional negligence theory.The biggest drawback of this type of research model is that it does not take the particularity of the medical industry into account,making it no difference between the judgment of traffic negligence and medical negligence.This article dose not adopt this traditional research model,but instead carries out systematic research on the difficulties and disputes in the determination of medical negligence from the perspective of team medical division of labor.In the introduction,this article reviews the research results at home and abroad on the team division of medical labor and its impact on medical negligence crimes,and then divides the full text into six chapters,with the pattern of "Presented difficulties(Chapter I)—Analysis of contention point(Chapter II to Chapter VI)it describes the differences between determination of negligence liability in the team's medical behavior and in the individual's medical behavior,and argues that the decriminalization of medical behavior combined with the limitation of negligence.Chapter I,as submission of the problem,firstly clarifies the original intention and research purpose of this article,which is divided into two sections.Through empirical research and data analysis,it points out the current situation and causes of unclear responsibility for medical negligence in judicial practice.The first section determines the subjective and objective dilemma of judicial workers based on the comprehensive analysis of the court decision of medical malpractices:subjectively,the judge lacks medical professional background and has to rely too much on the appraisal conclusions.Furthermore,medical behaviors are mostly conducted in the form of teamwork and collaboration,multiple negligence and co-opetition resulted led to uncertainty of responsibility.Objectively,patient seeks compensation for damages instead of criminal responsibility of the medical staff.Medical institutions chose "compensation rather than punishment" in order to make the patient silent.As a result,the harm caused by medical negligence was often hastily dealt with by civil negotiation and administrative penalties,which makes the nature of responsibility not clearly define.The second section further points out that the primary cause of difficulties in judicial work lies in the fact that the object of liability and the subject of liability do not have a uniform definition.The"medical behavior" as a research object cannot be conducted through the traditional enumeration method,but should be determined by the methods of“implementation subject,implementation standard,and implementation form".Chapter II determines the influence of the division of labor on the crime of negligence and consists of two sections.The first section pointed out that according to the information obtained from actual investigations in medical institution there are two main division modes for team medical division:1.“Organization management division of labor”and“treatment division of labor”.The former does not directly contact with patients but through its establishment of medical system,organization,coordination,management and supervision ensuring the safe,efficient,and smooth conduct of medical behavior.The latter refers to direct contact with patients,and conducts specific medical examinations,tests,disease investigations,medical treatment.2.There are two specific forms in the division of“treatment division of labor”:in“horizontal division of labor”medical workers do not bear the responsibility of supervision and guidance and in“vertical division of labor" there is professional guidance and supervision relationship between each other.The second section creatively points out that there is no room for common faults in the field of medical negligence.The so-called "common duty of non-divisional labor”does not exist in the actual medical operations which is a mistaken hypothesis of scholars.There is only multiple negligences at the same time.Therefore,it is only necessary to examine the problem of co-occurrence of negligence when multiple negligences lead to damage.This can be divided into three types:1.several negligent acts of the same medical staff should be merged,in order to determine the seriousness of the irresponsibility of the perpetrators;2.the multiple faults in multiple medical staff with no connection to the duty of care should be judged by principle of“injury participation”;3.the responsibility of multiple faults in multiple medical staff with supervision relationship should be assumed by the medical personnel who are responsible for core supervision and management duties.Chapter III to Chapter VI respectively study the four issues in the form of medical malpractice:the objective attention obligation affected by the medical division of labor,the causation and its limitation,the application of the trust principle and capacity for responsibility.Chapter III mainly discusses the objective duty of care in the team medical behavior,especially the new duty of care arising from the division of labor,which is divided into three sections.After summarizing the theory of negligence in various countries and regions of the continental law system,the first section determined the application of the behavior,invaluable Dualism in the perspective of new negligence theory in medical negligence.The"severity" in objective constitution of medical malpractice in our country should be judging by the following three points:1.general forecast of the results of constitutive elements;2.specific prediction of the possibility of concrete causal processes;3.concrete awareness of result avoidance.Unlike most scholars who enumerate medical care obligations from specific medical operations such as diagnosis,treatment,drug delivery,and care,the second and third section separately classify the medical staffs duty of care from the individual point of view and division of labor in the team.In the second section,the establishment of an individual's objective duty of care should be discussed from the perspective of "pre-examination","average physicians at the same level in the region" and"in line with conventional medical practice".In terms of organizational management obligations,it refers to the provision of reasonable and safe medical resources,the establishment of a standardized medical system,and the correct implementation of the rules;as for the obligation of treatment division of labor,it includes the obligation of timely treatment,notification obligations,and compliance with operational standards.These two kinds of obligations are supplemented by general duty of care and high degree of care obligations,which in the end form the "prerequisite medical personal objective duty of care" The third section describes the new duty of care and its violations brought by the horizontal division of labor and the vertical division of labor.The horizontal division of labor produces the obligation to jointly prevent the expansion of dangerous results and to ensure timely referral.The vertical division of labor produces the duty to correctly assess the risk of medical instructions,to supervise the behavior of the junior medical personnel,and the obligation to select team members for a rational medical plan.In a comprehensive view,the objective duty of care of medical personnel should be composed of individual obligations and obligation cause by division of labor.Chapter IV discusses the causality and its limitation of compound negligence in team medical behavior,which is divided into three sections.The first section points out that the medical accident technical appraisal conducted by the Medical Association is different from the judicial appraisal entrusted by the judge.The two are prone to conflict.To resolve this contradiction,it should be affirmed that the causality from medical accident technical appraisal on the basis of "post-mortem angle" and "conditioning theory" is reasonable,and the legal causality should be further limited by "relevance of" obligation violation" and"relevance of protection purpose" from objective attribution.Sections two and three explain separately the restriction model of causality between these two lower levels of objective attribution.In the second section,it is pointed out that in the case of an independent negligence,when the same result will still occur even the medical staff conducts compliance with duty of care,then the result should not be attributed to the actor,the judgment of "relevance of obligation violation" should be used to exclude the attribution.However,when the medical staff is in the division of labor,the exclusion of the attribution of this rule must be used as an exception only in the organizational management division of labor,and for the medical staff in the horizontal division of labor and vertical division of labor it cannot be applied.The third section points out that the purpose of the division of labor is to avoid mistakes through coordination and mutual supervision among multiple people,if the damage of the patient is caused by the division of labor itself,it cannot be attributed to the actor.Chapter V identifies the model for the exclusion of the attribution by the application of the trust principle in team medical division of labor.In the first section,through the analysis of the development history of the principle of trust,the rationality of the application of the principle of trust in judging medical negligence is drawn,and it is pointed out that the application should pay attention to:1.the medical personnel in the team has clear and specific division of labor,which does affect the risk of common medical behaviors;2.individual professional competences and skills of individual medical personnel in the team should be considered;3.with regard to the nature of the medical industry,the more core position in the team the medical staff have,the wider the scope of their duty of care is and the narrower the scope of application of trust principle to exclude the liability is.The second section points out that,when obvious medical errors occur in the horizontal division of labor,there is no room for the application of trust principle.The third section points out that the application of the trust principle in the vertical division of labor should after the selection of personal ability.Section IV discusses that the principle of trust between medical staff and patients can only be applied after the correct assessment of medical risks,the correct evaluation of patient abilities,and proper training.Chapter VI points out that the medical staffs ability of care and anticipated possibility should be examined when finally determine the responsibility of the medical staff.In the first section,after analyzing the different evaluation criteria for ability of care,it was determined that the“acceptance negligence”should be used to determine the ability of care of medical personnel by "improved objective criteria".That is,participants in the division of labor must not use their own inexperience and lack of ability to block responsibility.And it pointed out that both the horizontal division of labor and vertical division of labor have reduced the ability of care of the medical staff to varying degrees,and should be treated differently in the investigation of specific cases.The second section points out that the medical personnel are all in the medical institutions,when medical staff unavoidably violates duty of care because of organizational management deficiencies,law norms cannot expect medical personnel to act with obligations under such circumstances.Therefore,the establishment of responsibilities should be limited.