The Study Of The Recognition Of Medical Negligence

The medical disputes have already became the hot issues lately, with the increase of the medical injury sues, how to deal with the medical disputes and protect the legal interest of the patients and the hospitals cause more and more attention of the society. The recognition of medical negligence is one of the critical issues in the settlement of the medical disputes. The theoreticians argue about by which standard to cognize the medical behavior is negligent, which is focused by the patients and the hospitals. How to confirm the standard of the recognition of medical negligence with civil theory, which mechanism of the recognition of medical negligence is scientific and reasonable, what kind of reason can be use by the hospital to claim themselves exemption of responsibility ,how to prove the medical negligence and the like, is avoidless in the professional and technical medical sues. The article intends to discuss the above question in five parts:The first part analyses the negligence and the standard of the negligence in theory and illustrates the conception and the characteristic of the medical negligence which prepare for the following discussion.The second part discussed the medical noticeable obligation and noticeable capability. The medical noticeable obligation plays an important part in reorganization of the medical negligence, so discuss this part in detail as one chapter. This part firstly distinguishes three standards of the noticeable obligation, which is ordinarily notice, the same notice as dealing with own matters, the notice of the good manager and points out that the medical noticeable obligation should be the notice of the good manager then analyses the reasons. The medical noticeable obligation can be divided into general noticeable obligation and special noticeable obligation which are based on sanitation law, administration law, department regulations, medical nurse routines and iatrology literature and so on that form the specific standards of the reorganization of medical negligence. The medical noticeable capability is also a critical ingredient in the reorganization of medical negligence which is discussed in three circumstances in the article.The third part suggests if there are no sanitation law, administration law, department regulations, medical nurse routines and iatrology literature and so on that form the specific standards of the reorganization of medical negligence, we should recognize the medical negligence according to the abstract standard to recognize the medical negligence, that is, the level of medical treatment. The level of the medical treatment is when doctor make medical behavior, his knowledge, the degree of his notice, the technique and the attitude must accord with the standards which the doctors who have the general level of the medical treatment in the same circumstances take on. At the same time, in order to realize the fairness of the legal, we should considerate the technical factor, regional factor, emergency factor and the difference of the level of the hospitals.The forth part chooses seven types of representative specific medical behaviors, points out the condition of the medical negligence and demonstrates them by cases.The fifth part analyses the proof and exemption of the medical negligence. About the exemption of the medical negligence ,that is when medical injury occurs in which case the hospital need not take on responsibility, the article first analyses the confessional risk principle and know-agreement theory and analyses the exemption of the medical negligence of the doctors in the thirty-third clause of the Statute of Dealing with Medical Accident. The reorganization of the medical negligence should adopt fault prediction principle which makes the hospital prove themselves un-blamable and analyses the reasons.