On The Criterion Of Medical Malpractice And Its Confirmation

With the growing number of medical disputes, the damage of medical tort case has become a focus of the legal theory and practice in many countries. About essential factors of the damage of medical tort case, how to recognize the negligence of doctors is the most difficult part, and it can be said that is the core content and the most complex content in processing cases of medical tort. The importance is self-evident to set up the scientific and reasonable standard to recognize medical negligence on protecting the rights of both doctors and patients as well as the continuous development of medical science. Therefore, focusing on recognizing medical-malpractice especially medical negligence, Japan, Germany, Britain, the United States and other countries are establishing their own systems or theories, many of which are worthy of us to referencing. Looking at our status quo about medical negligence, the concepts of medical mistake, medical negligence and others are crossing each other, so it is very difficult to distinguish between them. In general tort law, the negligence is defined as a violation of the obligation. Generally the medical negligence is defined as violation of the duty of care. But the concept of duty of care is also needed to be defined. Therefore, the article focused on studying medical negligence. This paper includes three parts: the foreword, the main text and the conclusion, and it is about 30,000 characters. The main text includes the following five parts:The first part talks about the summary of issues related to medical negligence. In order to recognize the medical negligence we must know the premise concept of it. In domestic the medical negligence is mostly defined that: it is a kind of professional negligence that medical institutions or medical personnel violate their diligence obligations, which may cause physical or property damages to patients. The paper thinks that medical negligence is a concept of very broad coverage. If we want to understand it correctly, we must be based on their classification.The second part studies about the rules of recognizing medical negligence of other countries and their inspirations. Japan, Germany, Britain, the United States and other countries around the recognizing of medical negligence formed their own standards and principles from different angles. From that, we can see that it is very complex to recognize the medical negligence, especially for professional medical misconduct.The third part talks about the standard of recognizing non-professional medical negligence. A considerable number of medical mistakes is not involved in the judgment of the medical expertise, such as medical institutions fail to provide the qualified drugs. So this part analyzed the duty of care comprehensively, especially the duty of care of doctors as subject of medical conduct.The fourth part talks about the standard of recognizing professional medical negligence. Although we can judge some of them to rely on the common sense, a large number of cases must be judged through using the medical professional knowledge. Only clinical medicine experts are able to judge whether there is a medical act fault. The judge and jurors who generally do not have the medical expertise or clinical experience are unable to set specific standards of physicians and to recognize whether physicians violated their duty of care in specific cases. They must give the medical experts certain respect, using their professional judgment to arrive at a correct conclusion. This paper propose referring the theory of accepted standard by medical practice groups from the United States tort law, and try to establish the principle and standard of recognizing professional medical negligence which is suitable for domestic conditions.The fifth part talks about some legislative suggestions about recognizing medical negligence in China. Recognizing medical negligence is the core part in treating medical negligence tort problems. In view of the fact, the paper proposed three suggestions.In modern society, patients are constantly aware of their rights and their expectations to health are also continuously improved. And the other side, the awareness of doctors to protect themselves from the dispute is also becoming strengthened. Only if medical negligence is accurately defined and some reasonable principles and standards are set up that can promote harmony and stability of the doctor-patient relationship and develop medical science continually, and ultimately benefit human health.