On The Attentive Liability Of Crime Of Medical Negligence

With the advancement of science and technology, the criminal negligence of duty of care needs to be placed in the context of medical crime. Based on this, the theory of negligence and medicine needs further investigation.From the point of traditional medicine, if we can establish a causal relationship exists between medical treatment and treatment of the consequences, then medical negligence is not difficult to ensure. However, the medical treatment of high-risk behavior is widely used in modern medicine. With the inevitable impact, the old negligence theory (in sense of Erfolgsunwert) cannot meet the need of modern medicine, the new negligence theory (in sense of Handlungsunwert) encourage doctors to comply with one's obligation of avoidable result. It as far as possible uses in the best interest of patients with the diagnosis and treatment, health legal interest (Rechtsgut).It maximizes the maintenance of the patient's life. However, based on the background of risk society (Risikogesellschaft), super new negligence theory is not conducive to the cognizance of criminal negligence; on account of the theory abstract the obligation of predictable result.The basic point of this paper is as follows:First, from an abstract point of view, the duty of care is the result of not making the occurrence of harmful. The behavior should be cautious and concentrated. Negligence is the perpetrator must have foreseen the possibility. Negligence cannot be unforeseeable or unexpected, in other words, when the perpetrator has the duty of care, rational behavior has no fault, which is "reasonable person standard". Nevertheless, this standard will be transformed into a "reasonable professional standard", in the occasion of professional setting. Therefore, under the condition of existing technology, it is not the scope of the duty of care, which led to unforeseen consequences, or belongs to the adverse consequences caused by force majeure.Second, the purpose of medicine rules is not just as medicine guidance of physician treating disease and pain, but also to protect the patient to avoid damage to incorrect or improper medical practices. Therefore, physicians violate medical behavioral medicine rules, which means that the physician beyond the permissible range of risks and medical behavior. In other words, contrary to the physician in medical guidelines, the additional risk of non-scope should be foreseeable. It is the key point of medical negligence can be established, which is the foresee ability of the additional risk.Third, the level of physician is just abstract criterion attention ability. However, in the background of highly specialized medical technology, we must take into account the factors of medical specialization. Duty of care standard for specialist physicians is not in accordance with the duty of care standard for general practitioner, and the average medical standards should be the same family as the standard. When the disease outside the department, specialist should have the obligation of transferred medical treatment.Fourth, the treatment should require physicians to take measures proven effectiveness of clinical experience and medical care. At the time, it is ensured in accordance with the medical basis, and this benchmark is for a physician to be an average capacity of its obligations, which is called "an experienced physician's benchmark"(Standard eines erfahrenden Facharztes).The innovation of this paper is as follows:First, through medical cases analysis which on the attentive liability of crime of medical negligence, it is associated with the relevant indicators of clinical experience and the combination of the duty of care in medicine, in order for a specific health-related criminal cases to discuss. Second, in different medical environment, detailed consideration of the relationship between health habits, medical knowledge, complications, emergency medical and other issues with the attention ability, to pay attention to regulatory obligations as a criminal strategies of medical practices to optimize, which described the duty of care is consistent with standard medical treatment obligations. Third, by China law info, Judicial Opinions of China, Net Source of Law in Taiwan, and Japan Legal Network Library of Congress, the West-law in United States and other mature database and case papers, the author is based on the living conditions of China rather than simply followed the world trend, in a "Chinese context" to crack real Chinese problem.This paper intends to use the methods of historical, comparative analysis, case analysis and other research methods, combined with various cases of countries and regions over the years, in this way of convergence of legal norms and criminal policies, implementation of the research approach of Criminal Integration. Through fact-finding, theoretical introduction, recommend appropriate solutions, the author inspect the attentive ability of medical negligence crime in panoptic-style.This article is broadly divided into seven sections:The first part is an introduction, a clear awareness of the problem, set the scope of the paper and gives the overall approach.Part II:Medical research is to define the core of criminal negligence of duty of care. In this chapter, first described criminal negligence in the Criminal Code and the theory of professional negligence (Professionelle Fahrlassigkeit), and summarized the theory of criminal negligence and professional negligence theory. It make the theory clear that under the influence of behavioral theory of causation, which is just delinquents established a causal link between the conduct and the results of the phenomenon. That is, who caused the occurrence of socially harmful results under the causal chain can be expressed the meaning which meets the requirements of the delinquents. The establishment of the fault committed, is due to the behavior of people do not take measures against the results of the appropriate legal interests avoidance, and breach of the duty of care, and the perpetrator have foreseen the outcome and the ability to avoid. More things need to be noted that the establishment of criminal negligence need a chain of causality between the action and outcome. Secondly, a clear definition of medical practice, and to explore whether the category of medical negligence should embrace professional negligence theory. If the perpetrator may occur dangerous behavior with a certain outcome, one should evade obligations and do to the duty of care, in order to avoid the occurrence of the results within their capabilities. Even if it belongs to professionals, but also just because it has engaged in certain business identity regardless of its specific attention ability, that any of them require a higher duty of care, thereby aggravating their fault. Finally, a number of cases, the decriminalization of medical practices on display, but there is no medical practices of decriminalization space.Part III:Among the chapter on medical duty of care were based on modules. First emphasized the duty of care is a core element of criminal negligence, it clears up the content of duty of care predictable possibilities, and cleans up the evolution process of theory of the duty of care, indicating that the old duty of care negligence theory is likely to emphasize the results foreseen of implementation, and the new duty of care in negligence theory is the result reflects the possibility of avoiding the requirements of the duty of care for negligence, over the new theory is concerned, more emphasis apprehensive feeling which is a vague concept; Thirdly, on the overall aerial view of medical duty of care shows the medical duty of care generally based on breach of a binding requirement, which is contrary to the medical duty of care, medical guidelines violation also constitutes medical attention breach of the obligation, the existing medical literature, medical knowledge as a duty of care medical reference and specific medical standards, health habits as a benchmark to determine medical attention obligations.Part IV:This chapter covers the medical attention to determine the reference obligation. The main emphasis on the duty of care is in line with medical standards of medical treatment obligations. First, for the association to follow medical standards and commitment to medical criminal negligence liability elaborate, which followed by a clear medical standards to determine the benchmark conventional treatment, the conventional treatment of the significance gist should be discussed, and highlights an important influence on the condition judgment and treatment decisions of personally clinic duty physicians. Discussion to follow medical standards and bear the medical problems associated with criminal negligence liability between tables, must clears up the intrinsic functional significance and medical standards of medical standards; specific medical standards to determine the benchmark conventional treatment, where the need to render the criminal negligence, the criterion of the duty of care debate, and then define the behavior and criminal negligence medical evaluation criteria. This chapter discuss the physician violation of personally clinics obligation is established medical problem criminal negligence, the important influence of the disease judgment and treatment decisions physicians personally clinic duty, citing a physician violates personally clinics obligations established criminal negligence of relevant examples.Part V:Chapter on medical criminal negligence was typed expedition to explore the competing types of fault types and supervisory negligence. Medical practices and trust among the principles discussed, citing relevant cases described. Trust principle role is more evident on the interior of the medical team shared responsibility; trust formed because of the division of labor, which is a necessary prerequisite for cooperation, the division is based on the internal organization of the hospital's medical records and clinical systems in specific conventions. According to the medical relationship between the participants, the medical division of labor can be divided into two modes horizontal and vertical division. In the medical activities, the application of the principle of reliance must be fairly limited, so as to avoid its abuse. Among health care organization in the medical division between those, who apply the principles of trust must meet a series of basic conditions, that can be described separately from positive to negative conditions. Among the chapter, with particular reference to the application of the medical team misdiagnosed and trust principles to cases based on the analysis.Part VI:Doctor's instructions and patient self-determination can be realized without problems in communication between doctors and patients. However, in real human interaction, the physician should explain specific matters and the extent described medical news and information for both doctors and patients to understand the differences and so on, which are objective and unavoidable issue. Because of different perspectives can be described criteria into physician obligations standards, criteria and compromise patient standard categories. There are also tensions between discretion and the right to self-determination of the patient's physician. Physician's discretion based on the scope of the medical standards, cannot exceed this boundary, if physician fully respect the right of self-determination, there will be some special requirements which may exceed the scope of the patient's medical standards and cause some problems. This relationship between the two can be explained by the "PEC mode".Part VII is the conclusion which emphasizes the elements of attentive liability (duty of care) in the medical crime.