The Research Of Medical Malpractice

There still exists different understanding to the category of "medical personnel", the cognizance of serious irresponsible and the criterion of grievous damage to the person in theory and judicial practice; the criterion of "crime or not" "this crime or this crime is also dissimilar.Part one talks about the constitution of medical malpractice. First of all, know the category of "medical personnel" well. Only the people who heal or take care of the patients directly can be the subjects of the crime. And the both objects of this crime, one is the management order, the other is the life and death right of the victim. The criterion of "serious damage to the person who comes to see the doctor" should adopt judicial standards, not executive standard, which talked about in the book "Standards of human body injuries identification". The duty of care and the attention ability are the basic to judge a medical person whether has negligence in the subjective elements of the crime.Part two discusses judicial cognizance, finds out the boundaries among "crime or not" "this crime or that crime". On the issues of "crime or not", make some differences among medical errors, saving behaviors, medical accidents, medical complications, medical technology accidents and medical malpractice.The last part introduces how to reform and perfect this crime from there aspects:firstly, improves filing a case, increases the prosecution rate; secondly, make the prescribed penalty and accusation terms more perfectly, amending the article 335 of the Criminal Code to "A medical person, who breach the medical staff rules and regulations or nursing routines, causes death or serious damage to the person who goes to see him shall be sentenced to not more than three years imprisonment, criminal detention, control or fine, deprivation of the doctor occupational qualification as well. If the circumstances are especially serious, not more than seven years in prison, fined and deprived of the doctor occupational qualification"; thirdly, is regulating the identification of medical malpractice's professional problems in judicial practice, and the results of identification of medical malpractice shouldn't be the premise of filing a case, and the public security organs has the full autonomy to identify medical issues.