Research On Infringement Caused By Dereliction Of Duty In Medical Care

Medical care dereliction of duty infringement means infringement caused by dereliction of duty in medical care. This conduct happens on the basis of medical treatment relationship, and is regulated by infringement law for its particularity. At present, researchers pay more attention to macroscopical issues such as medical harm and medical accident, while discussion on issues in a more microscopic aspect such as dereliction of duty in medical care is quite few. This thesis is intended to present some thoughts on medical treatment from the viewpoint of dereliction of duty. First, the establishment of medical care relationship and its legal property are explained; then the legal definition of medical care dereliction of duty together with some related concepts are elucidated and the explicit manifestation of this infringement are explored; in chapter four, the qualifications and the onus probandi of this infringement are disgussed; in chapter five, the reasonable responsibility bearing of this infringement is discussed; in chapter six, some propositional advices on how to reduce the infringement by legislative measures are put forward.As to medical care relationship, in this thesis, it is not simply the kind of personal doctor-patient relationship generally understood by most of the people. Medical care relationship is constituted with two relationships: stipulated and non-stipulated. As a result of the complication, medical care dereliction of duty infringement should be approached from many aspects. Firstly, the implementary body and the responsible body of the infringement may be different or the same. In specific cases, to avoid generalization, they should be scrutinized. Secondly, how to define the obligation of the doctor in his medical practice and the medical institute? The particularity of the medical practice profession and medical institute leads to the necessity of the various sources of the doctor: professional obligations such as informing and explaining, or non-disruption of treatment, and other restrictions on doctors framed by the commonweal of the medical institute, etc. Thirdly, the different sources of the obligation lead to different manifestations of the dereliction of duty infringement. Thus, dereliction of duty may be caused by subjective shunting, objective limitation of professional skills, and weak responsibility awareness, etc. From the above three aspects, we can only reach a rudiment nomological concept of medical care dereliction of duty infringement. To reach a deeper and more precise understanding, it is necessary to differentiate this concept with other related concepts. Therefore, one chapter is devoted to list those concepts with comparison and contrast, so as to offer some circumstantial evidences.To fully understand medical care dereliction of duty infringement, it is necessary to research its constituent qualifications. According to China's law, medical care dereliction of duty infringement pertains to general infringement, and is constituted by four elements: the act of infliction, the fact of infliction, the causal relation between the act and the fact, and subjective offence. The act of infliction, owning to its particularity and probability, should be examined from two perspectives: individual dereliction of duty and corporate dereliction of duty, which is also helpful in solving the problem of responsibility-bearing for the infliction so as to exhibit the justice of law. The fact of infliction, exhibiting the particularity of dereliction of duty infringement, should it be the depravation of the disease or the infliction caused by other complications because of the treatment, needs to be scrutinized and the approached differently. The assessment of the causal relation between the act and the fact is more difficult, so in this thesis, it is discussed from three aspects: its condition, its correspondence, and its complexity. Condition means the inevitable relation between the act and the fact of infliction. If the doctor's act does not necessarily lead to the infliction or is just a slender factor of the infliction, the meaning of condition is manifested. Correspondence is closely related with condition, and it reminds us that there should be a limitation when we hold doctors to account, which is also a kind of protection and affirmation for the due medical practice on the doctor's part. Complexity is exhibited in the analysis of many factors under uncertain circumstances such as time and space, the individual patient, and the individual doctor, etc. One major theme of this thesis is that the analysis of the complexity, more often than not, shows a tendency to protect the rights and interests of the doctor. As stated before, medical care dereliction of duty infringement is general infringement, and thus objective offence is one major assessing element. The point view of honest good-willed individuals would be helpful in reaching a full understanding of the subjective factors of the infringement as well as the infringement itself.The responsibility-accounting principle and its applicable offence range of medical care dereliction of duty infringement are reasonable. Its putative applicable range for special cases is also quite valuable. Owing to the circumstance and conducting manner of medical care dereliction of duty infringement, and the fact that impartiality principle is not the responsibility-accounting principle clearly stipulated by China's Law of Infringement this thesis attempts to account the responsibility for this kind of infringement from the perspective of reasonableness. Reasonableness is related to rationalism and yet it is also different. As for infringement responsibility, there should be a reasonable range of the patient's physic condition, the disease, and the doctor's prognosis, etc. Only when all these factors are considered in real cases, can juristic reasonableness be achieved. In fact, the reasonable apportion of the responsibility of medical care dereliction of duty infringement is not only beneficial to the patients, but also protective for the doctors, the medical institutes, and the medical practice in large. So ultimately, it is beneficial to most people, which is also the purpose of this thesis.In the conclusion chapter, after discussing and analyzing the juristic features, constituent elements, and responsibility sharing of medical care dereliction of duty infringement, doctors' responsibility insurance system is proposed to be introduced into China. This system is quite common in the western developed country but its application in China still requires a lot of discussion.Bearing a step-by-step basic structure, with comparison and contrast, adopting a research method of from the general to the specific, the phenomenon to the essence, this thesis follows the natural cognitive law of people. Still bearing some flaws, such as the incompleteness of the thinking on the system construction and lack of specific suggestions, the thesis is open to comments, criticisms and advices for improvement.