On The Application Of The Medical Malpractice Crime

Medical malpractice crime was the new crime provision in the 1997 China's newly revised "PRC Criminal Law" article 335. The original intention of this accusation was set because the act due to the medical staff's serious irresponsibility, resulting in deaths or serious harm people health of the patient happen from time to time. Such acts have a great social harm, already constitutes a crime , and in 1997 before the lack of Penal Code expressly provides that the judicial practice in such cases there is a qualitative and punish certain degree of confusion, therefore, in accordance with the views of crime, the crime of additional incidents. But decades of judicial practice shows that this crime in the count, the concept that there are differences in the file, the detection, identification and other aspects of the rules may not specifically in the medical and health sector internal mechanism system full of contradictions as the background, medical difficult to play its due role in the crime, therefore, perfect Malpractice-related crimes must be explained with medical and health reform will proceed simultaneously.This paper is divided into four sections on the application of Medical Malpractice value.The first part introduces the crime of existing medical incidents medical environment. During the transition period through the medical industry internal contradictions and external environment analysis, the authors believe that the medical and health services model of market-oriented commercial development trend, the state medical security system is imperfect, three-level medical network system is the virtual home medical incidents and the main reason for high incidence of disputes, in such circumstances , the medical and health sector urgent need of legal norms and supervision, the crime of medical incidents should play the role of national law, but objective constraints, the majority of incidents of criminal cases handled civil, and the lack of proper medical incidents reported by the system of supervision and identification of the existing system the flaws, but led to the shrinkage of the crime of medical incidents.The second part mainly discussed the incidents constitute a crime of the defect, one of the main requirements for the performance of the confusion lies in medical institutions whether non-clinical staff the main crime, the party and government management, and support service, engineering and technical personnel for specific acts and whether the obligations of its indirect seriously irresponsible resulted in death or serious harm to patients attending the health of people on this incident is dealt with the crime. Second performance of the offense for medical negligence sin explain the differences, mistakes can be sin for negligent performance of the fault can be too self-confident for the performance of the fault lies in differences between the medical staff and the ability to foresee the ability to judge without corresponding provisions. Third offense for the incidents seriously damage the general provisions of the "Criminal Law" neither of medical blunders in the crime "serious damage the health of people attending" provide criteria for judging, there are no clear judicial interpretation, and judicial and health experts based on the "Regulations on Handling Medical Accidents" "Malpractice classification standard (draft)," and "Identification of the body injuries standards" set the standard and that a number of disputes. Fourth Legal Sentence medical incidents in the crime on the lack of scientific configuration, performance of a single species for punishment, can not meet the actual needs. Fifth offense of crime and non-crime for medical fuzzy boundaries, the crime is the technology-Malpractice higher crime, the medical technological accidents, medical errors, medical accidents and burst forth with, the rescue act, and other incidents very similar incidents and crimes charges of intentional murder, intentionally causing injuries, caused by negligence the death of people, the crime fault caused many injuries, major responsibility accident crime, the crime of illegally practicing medicine, dereliction of duty and other crimes also exist many similarities, and are therefore identified as incidents in the crime there more difficult.The third part of China's current judicial status were analyzed. First, the medical file for the crime of difficult outstanding issues, mainly administrative and judicial obstacles to convergence, limited source material on file; Secondly because of the special nature of medical crimes prosecution makes medical issues become extraordinarily complicated aging, some medical mistakes harm caused by the act occurred results quickly, the interval quite a long time, the harm and negligent acts result of a causal relationship between difficult to determine, no recourse aging calculation; Third medical evidence of the crime of evidence difficulties, medical instruments as a legal document should be no alteration, but in the current revision hospital medical records, altered phenomenon seriously. In addition, the medical evidence involves a lot of scientific knowledge, whether as a medical literature on the final evidence in the law of evidence to the nature, type and role in the country's existing laws did not clearly defined; Fourth, the medical expert conclusions and apply exist arbitrarily. The conclusions issued by the organization rather than personal responsibility, experts court system and experts debate system in our country has not yet been generally established, expert conclusions in the trial of the two sides can not accept control of Testimony identified and feasibility studies, therefore, conclusions of the rigor of serious nature can not guarantee that. At the same time, the judiciary in the expert conclusions on the use of medical incidents sometimes depend too much on the identification of the expert conclusions, sometimes with experience in handling cases and terms of reference arbitrary choice expert conclusions, or repeated re-verification, verification of the case beyond, the endless procrastination. Above all incidents of crime and will adversely affect judicial practice.The fourth part in the operation against crime Malpractice the problems discussed perfect legal and medical incidents related crimes health of the urgency of reform. On the one hand it is necessary to improve the law, including the crime of connotation and extension of medical incidents related explained that medical identification system, as well as the supervision of an accreditation body, but there are limitations of the law is, therefore, to pass our health care system and improve the social security system and reform, the crime provided for the applicable platform.Medical Malpractice crimes is an important occupational health industry norms and restraint, with the development of the times should be improved continuously, and the medical and health sector should also continue under the guidance of the law regulating industry behavior, and ultimately for the benefit of patients.