A Study On Disputable Issues In Judicial Cognizance Of The Crime Of Medical Malpractice

Nowadays, since medical malpractices and medical disputes have become a worldwide problem, most countries hope to establish a scientific and reasonable medical dispute settlement mechanism. Contemporarily, both civil law and common law countries specialists as well as practitioners hold identical views that it is necessary for criminal law to interfere in the settlement of medical malpractice. Article 335 of China's 1997 Criminal Code provides for the crime of medical malpractice: "the act, arising out of the irresponsibility of medical staff, that leads to the death of or serious damage to health of the patient." This provision lays a foundation for the criminal justice practice and theoretical research, but domestic theory circle of criminal law has conducted a comparatively weak study on the crime of medical malpractice. This paper makes an analysis of the status quo about the existence of large numbers of medical disputes home and abroad, working out the main reason for the sharp increase in the number of China's medical disputes for the moment as well as for the disappearance of legal precedents for crime of medical malpractice. Furthermore, a selective study is taken up in terms of such difficult issues in relation to the judicial cognizance of the crime of medical malpractice as: identification of the result of damage, causation, and subjective fault, and together with an analysis of the new health care reform, proposals are put forward for perfecting the said criminal charge. With 34200 words, this thesis consists of the following four chapters:Chapter I: status quo of the judicial practice in terms of the crime of medical malpractice. Through a comparative analysis of the current situation concerning medical malpractice as well as medical disputes in the United States, European Union, Japan and China, this chapter clarifies the point that with the development of economy and society medical malpractice and medical disputes show an increase rather than fall into a decline. Bringing in the author's personal experience from study and work, this chapter also expounds the main reason for large numbers of occurrences of medical malpractice and medical disputes in China. With a brief review of China's legislation with regard to medical malpractice and medical disputes, this chapter points out the shortcomings and deficiencies existing in the regulations of the legislation dealing with medical malpractice and medical disputes, furthering a clarification about the cause for nominal existence of the crime of medical malpractice in judicial practice.Chapter II: judicial cognizance for the result of damage with reference to the crime of medical malpractice. Due to lack of judicial interpretation, there appears a diversity of understandings about the two clauses, that is,"causing the death of the patient"and"seriously damaging the health of the patient", which in turn brings about great difficulties to the judicial cognizance. Based on the mainstream viewpoints of scholars, in this chapter the author proposes different ideas in respect of the said subject, raising in-depth and innovative understanding and suggestion for the cognizance of the result of damage in relation to medical malpractice.Chapter III: judicial cognizance of the causation in the crime of medical malpractice. This chapter, coupled with the principles of cognizance, focuses on the characteristics and types of the causation in medical malpractice, in addition to a study on medical appraisal—the most important link in the cognizance of the causation. Through an analysis of the status quo and the existing problems in the field of medical malpractice appraisal, the author sets forth his own point of views on the attributes and application of medical appraisal.Chapter IV: judicial cognizance of the subjective fault in the crime of medical malpractice. This chapter lays great emphasis on the study of the subjective fault in the crime of medical malpractice, figuring out the origin of the principle of duty of care in medical treatment, the present development of the relevant rules of judgment and the significance of applying"theory of medical treatment level"in China, as well as analyzing the limits of duty of care for medical staff and the significance of introducing"principle of trust"and"theory of permissible hazard"to the cognizance of the crime of medical malpractice.Conclusion: the relationship between new health care reform and the perfection of the crime of medical malpractice. In the case of frequent occurrences of medical malpractices and medical disputes, the regulation about the crime of medical malpractice does not fulfill its duty of constraining and preventing the criminal behavior in health profession, therefore the author proposes that legal loopholes be remedied together with the reform of health care system, further perfecting the relevant interpretations and additional regulations considering the crime of medical malpractice, so as to promote the healthy and steady development of health care industry.