On Malpractice In Medical Treatment

The legislative history and present condition of medical malpractice prove that it is necessary and sensible to make criminal investigations of medical care and medical malpractice. Meanwhile, it is scientific and accurate that medical malpractice is stated in Article 335 of the Criminal Law of the Peoples Repubic of China as a serious offence.This paper attempts to make a thorough and throretiacal research into the criminal offence of medical malpractice by a carful study of the four key elements of criminal action. The direct criminal objects of the offence of medical malpractice refer to medical and health management and the rights of a given patient. There are objectively four prevepuisites: it is essential that the offence take place in medical treatment; that the malpractice result from an undesirable failure to carry out professional duty; that a given patent die or suffer a serious damage to his health; that a causal relationship in criminal law exist between the misconduct and the death or serious damage the health of a given patieat. The direct criminal subjects refer to the professionals directly involved in the medical care and those administrative and rear-service personnel who are directly or indivectly responsible for the medical malpractice as a result of a failure in management and supervision. The criminal offence of medical practice is in fact a subjective misconduct, namely, medical personnel concerned fail to foresee the terrible consequences or a given patient dies or suffers serious health damage due to the fact that they are overconfident to avoid the terrible foreseen consequences.As far as the verification of the criminal offence of medical malpractice isconcerned, it is imperative to distinguish criminal offences from noncriminal offences, that is , a distinction between medical malpractice and medical accident; between medical malpractice and illegal medical practice; between medical malpractice and a distinction between the criminal offence of medical malpractice and other offences: medical malpractice and illegal medical practice, medical malpractice and misconduct resulting in death or serious damage, medical malpractice and accident due to failure to perform professional duties, medical malpractice and undue neglect of duties. At present in China the penalty for medical malpractice is unvaried, narrowly ranged, with the highest possible measurement of penalty on the low side, which is unfavorable to the prevention and punishment of criminal offence, a flexible and effective penalty of medical malpractice. In view of this fact, it is vital to improve the criminal law of China for medical malpractice in order to protect the rights of both the medical personnel and patients: confiscation of properly, a broader range of punishment and an increase in the highest possible measurement of penalty, just to cite a few examples.