Research On Disputable Issues In Crime Of Medical Accident

Beginning from the elements of crime of medical accident, this paperanalyzes crime of medical accident by six chapters.The first chapter of this thesis is a study of the object and the objectiveof crime of medical accident. The first part studies on the object of medicalaccident crime. I think that the object of crime of medical accident is theorder of medical institution, which government administers and the right oflife and health in Criminal Law, the order of medical institution whichgovernment administers is the main object and the right of life and health issecondary. The second part is a study of the objective of crime of medicalaccident. I think patients are people who go to hospital accepting medicaltreatment. It includes not only ill people, but also the healthy people whoaccept other medical treatment. I don't think that we ought to identify apatient from pure objectivism. If the doctor takes him as his patient, he willbe a patient.The second chapter studies on the objective elements of crime ofmedical accident. The first part of this chapter studies on medical treatment. Ithink medical treatment should include the prevention of disease,examination, treatment, nursing, correcting one's body, helping to give birth,abortion and so on. Such behavior can make one's body take some changesor recover under the medical knowledge and skills. Besides, medical treatmust be legal and professional. The negligent medical treatment is medicaltreatment also. Only legal and professional negligent medical treatment is thecriminal action of crime of medical accident, which distinguishes thecriminal action of crime of medical accident from crime of practicingmedicine illegally. I think we ought to identify the legality by specificmedical treatment. Professionalism means that medical workers can onlycarry out the right which his unit endows him. The second part is a study ofthe "neglect seriously". I think that the "neglect seriously" means thatmedical workers violate the medical institution and medical convention inmedical treatment, and don't carry out or carry out erroneously their medicalduty. After analyzing the shortcomings of "neglect seriously", I suggest thatwe ought to replace "violate the medical institution and medical convention" to "neglect seriously". The third part studies on the meaning of the "injureseriously patient's health". I think that it means serious injury only. I suggestthat replace "make patient's serious injury" to "injury seriously patient'shealth". The last part of the third chapter studies on the relation betweencause and effect of crime of medical accident, it includes the relation in lawand the relation in fact.The third chapter of this thesis is a study of criminals who offence crimeof medical accident. The first part of this chapter studies on the people whoare qualified for breaking crime of medical accident. As medical workers, onthe one hand, they must graduate from the professional medical college ormedical institute and have medical knowledge and skills, moreover, theyneed to get the qualification of a doctor, on the other hand, they need to getlicense from hygiene administration. The second part of this chapter studieson how to recognize medical workers. I don't think people who engage inrear-service and administration in hospital belong to medical workers.Medical workers are medical technical workers who have medical knowledgeand be approved engage in medical treatment by government. If those whoengage in rear-service and administration in hospital cause patients seriousinjury or death faultily, I think they should be punished according to crime ofserious negligence or crime of cause people serious injury or death due tocommon negligence. If doctors in legal hospital work in other small clinics intheir spare time, they practice medicine illegally;they can't be punishedaccording to crime of medical accident. If doctors work illegally in hospitaland cause serious result, they also should be punished according to crime ofpracticing medicine illegally, not medical accident crime. In some remotemountainous area, if rural doctors, who don't have licenses of doing medicalwork or those who help women to give birth, make some medical accidentsby occasional neglect, and they really have the doctoring ability, then theirbehaviors can be taken as crime of medical accident. I also think that medicalstudents who have finished the medical theory study, are sent to hospital bytheir medical school also belong to medical workers.The forth chapter of this thesis is a study of the subjective elements ofcrime of medical accident. The first part studies on the meaning and bases ofthe attention obligation. The content of the attention obligation is "the bestattention obligation". In this thesis, I also list some common violations to theattention obligation. I think that the bases of the attention obligation are law,medical convention and the content of medical books. The second part is astudy of identification of attention ability. I think that if a common medicalworker who engages in the same medical action has attention ability, then themedical worker who we judge has attention ability also. When we judge onehas attention ability or not, we should use the objective and subjectivestandard together. I think that we ought to adopt the subjective standard whena medical worker's attention ability higher than that of others who engage inthe same medical action. The third part studies on judgement of negligence inmedical treatment under some unusual circumstances.The fifth chapter is a study of judiciary identification of crime ofmedical accident. The first part studies on the differences between crime ofmedical care and non-crime. I mainly analyze the differences between crimeof medical care and medical accident, medical complication. The secondpart studies on the differences between crime of medical accident and severalsimilar crimes. The main body of this part is a study of the differencesbetween crime of medical accident and serious liability accident crime, crimeof neglecting one's duties, faultily cause people death or serious injury crime,crime of practicing medicine illegally.The sixth chapter is a study of the legislative perfection of medicalaccident. In the first part, I mainly illustrate the shortcomings existed inlegislation of crime of medical accident in the Criminal Law of the People'sRepublic of China, such as the kind of the penalty is simplex,the scale of thepenalty is too small and the severest punishment does not severe and so on.In the second part, I give some suggestions on how to perfect the penalty,such as adding pecuniary punishment, setting up qualification penalty,enlarging the scale of the penalty, increasing the severest punishment and soon. The third part in this chapter is about other things to which we should payattention in using penalties.