Study On Determination Of Medical Malpractice

Medical negligence is not only a type of negligent tort,but also the core of medical negligence.Prior to the promulgation of Tort Liability Law,China mainly judged medical negligence according to the relevant provisions of the Medical Accident Handling Medical Accidents.After the promulgation of Tort Liability Law,the rules of medical negligence judgment are stipulated in the basic law of our country.The Civil Code basically follows the relevant provisions of medical negligence judgment in Tort Liability Law,and few provisions are amended in the substantive sense.The premise of medical negligence judgment is to define medical negligence.From the current situation of the definition of medical negligence,it mainly follows the definition of negligence.Although this definition method has its rationality,it should also pay attention to the difference between medical negligence and general negligence.The main body of medical negligence is medical personnel,and the subject of responsibility is medical institution.Medical negligence is the fault in medical behavior,and medical behavior should not be limited to whether it has the purpose of diagnosis and treatment.Based on this,medical negligence should be defined as the fault of medical personnel in carrying out medical behavior.The object of medical negligence is medical behavior.The development law of medical behavior can be analyzed from its characteristics and development context.The characteristics of medical behavior are mainly risk,uncertainty and discretion.The development of medical behavior is divided into changing from empirical model to evidence-based model and promoting standardization and homogenization of medical behavior.The key word of fault judgment is the duty of attention,whether it constitutes fault depends on whether the duty of attention is fulfilled.The study of medical negligence should also start from the duty of attention,but the expression of the duty of attention in the judgment of medical negligence is more unique,often expressed in terms of medical level,medical routine and so on.These terms can replace the duty of attention to respect the law of the medical industry,more understood and mastered by medical personnel.In tort law,the allocation of attention obligations often through a variety of considerations,can be predictable,avoidable and public policy,the attention obligations of medical personnel should also be configured within this framework,of course,in the specific allocation,need to consider the special situation of the medical industry.The judgment standard of medical negligence is the core of the judgment of medical negligence.When the Tort liability Law was formulated,there were medical level standard,diagnosis and treatment standard and routine standard,medical practice standard.The tort liability law and the civil code of our country make the standard of medical treatment level as the standard of judging medical negligence in our country.There are some difficulties in the application of medical level standard,which are mainly reflected in the inconsistency of medical negligence judgment standard and the different understanding of the degree of attention obligation to medical personnel.There are three reasons for this dilemma: the relationship between fault judgment standards has not been fully clarified,the substantive law has established different judgment standards and the procedural law norms and substantive law norms between the improper connection.In view of these three reasons,the following countermeasures should be taken: in theory,the connotation of medical level standard should be deeply analyzed.In the substantive law,the medical level standard scientific allocation,in the procedural law,through the promulgation and revision of relevant laws to strengthen the implementation of medical level standards.At the level of judicial practice,the medical level standard is implemented by perfecting the factors to measure the medical level,issuing the guiding cases related to the medical level standard and strengthening the medical level standard in the judgment document.Medical level is the criterion of medical negligence,which can also be reflected by specific rules in violation of diagnosis and treatment norms.In our country,there are different views on the scope of diagnosis and treatment norms,whether it is academic or judicial practice.The correct understanding of diagnosis and treatment standard needs to be carried out from two levels: connotation and extension.In connotation,diagnosis and treatment standard is technical standard.Some of the norms of the obligation to explain patients also have the nature of technical specifications.In extension,we should understand the diagnosis and treatment standard through the six groups of relationship:diagnosis and treatment standard and law,diagnosis and treatment standard and diagnosis and treatment standard,establishment of diagnosis and treatment standard and approved diagnosis and treatment standard,diagnosis and treatment standard and diagnosis and treatment routine," prescribed " diagnosis and treatment standard and " non-specified" diagnosis and treatment standard,diagnosis and treatment standard and diagnosis and treatment guide,expert consensus.For the judgment standard of violating the standard of diagnosis and treatment,the current law and judicial interpretation are not clearly stipulated,and the academic circles have hardly studied the standard of violating the standard of diagnosis and treatmet.The judgment standard of violation of diagnosis and treatment standard and the judgment standard of medical negligence should be distinguished.The judgment standard of violation of diagnosis and treatment standard is whether it is consistent with the content of diagnosis and treatment standard,and individual difference or regional factor is the consideration factor of judging medical negligence.There are two problems in the timing of medical malpractice in violation of the diagnosis and treatment standard: the first problem is that there are still different understandings of the consequences of violating the diagnosis and treatment standard,and most scholars in the medical field advocate that the diagnosis and treatment standard is a reference material.Most scholars in the field of law argue that there should be presumption of fault in violation of the standard of diagnosis and treatment.The second problem is that if the presumption of negligence is used,the reasons for the counterclaim of medical institutions are not clear and complete.In view of the first problem,the consequences of violating the diagnosis and treatment standard are analyzed from the nature of the diagnosis and treatment standard and the function of the diagnosis and treatment standard.In view of the second problem,after determining the basic reasoning of the specific counterclaim cause of the medical institution,the counterclaim cause of the medical institution is divided into the final counterclaim cause and the preliminary counterclaim cause.The final reason for counter-certification refers to the fact that once the subject matter of counter-certification is established,the medical institution will no longer have medical negligence,and of course will no longer bear tort liability.Including the usual medical level and emergency to fulfill reasonable diagnosis and treatment obligations.Preliminary counter-certification refers to the counter-certification that can overturn the presumption that medical institutions have medical negligence.The presumption of negligence of the medical institution is overturned once the cause of the counterclaim is established,but this does not mean that the medical institution is not negligent,that the patient needs to prove again that the medical behavior of the medical personnel is negligent,that the medical institution also needs to defend its negligence,and that the preliminary cause of the counterclaim includes the specific circumstances of the patient,the standard of diagnosis and treatment is out of date or there are certain problems.Of course,the anti-certification of medical institutions is open,our country should strengthen the interpretation of relevant legal norms and strengthen the study of medical jurisprudence to constantly improve the anti-certification of medical institutions.In some cases,the patient will encounter obstacles in the proof of medical negligence,and the judgment of medical negligence must be dealt with correctly.Three factors need to be considered in defining the proof obstacle,namely,human factor,time factor and effect factor.The obstacle of proof is different from that of proof.At present,there are some difficulties in the judgment of medical negligence in the proof of obstacle,which are embodied in two levels,one is the difference of understanding the consequences of Article1222,items 2 and 3 of the Civil Code,the other is the incomplete record of medical records,and the thinking of fault judgment is not clear.In view of the first question,it is necessary to clarify the differences between the theory of determining fault and the theory of constructive fault.By analyzing the three aspects of the normative intent of Article1222(2)and(3)of the Civil Code,the subjective imputability of medical institutions and the means of relief and sanctions,and the measurement of the interests of medical institutions and patients,it is considered that the "presumption of negligence" is more reasonable than the "presumption of negligence ",and the legal consequences of Article1222(2)and(3)of the Civil Code should be presumed negligence.Secondly,it is necessary to solve the problem of counter-certification in medical institutions.In this regard,different reasons should be set up for the behavior of intentional proof obstacle and negligence of medical record.For the behavior of intentionally causing proof obstacle to the medical record,the medical institution can prove the content involved in forgery,tampering,refusing to provide the medical record and the fact of the case is irrelevant or not necessary medical behavior to counter the evidence.However,in such cases,medical institutions should not be allowed to counter their own medical standards.For the behavior of proof obstacle caused by the fault of medical record,the reason of counterclaim of medical institution should be relaxed,except for the above two kinds of counterclaim,the medical institution should be allowed to counter the evidence in order to fulfill the medical level at that time.In view of the second problem,fault judgment should be carried out on the basis of the analysis of the causes of incomplete medical records.If the case can be found out,the fault judgment should be carried out according to the standard of medical level,and if the case can not be found out,the rule of fact self-certification can also be applied to the fault judgment.For other reasons caused by incomplete medical records,first of all,on the basis of ascertaining the facts of the case,we should use the standard of medical level to judge,if we can not find out the facts of the case,We should use the rule of self-proof and proof of obstruction to judge.