On The Medical Negligence In Criminal Law

In medical clinics, medical negligence is inevitable and widely exists in medical behaviour. By using the comparative analysis method, this paper elaborates the significance of medical negligence in criminal law, and studies the criminal liability of medical negligence.This paper is divided into five parts. The first part is the introduction of medical negligence. Medical negligence exists in medical behaviour, in which the medical professionals violate the necessary attentive liability resulting in harms to patients. To have a system understanding of medical negligence, this part mainly introduces the concepts and sources of negligence and medical negligence, and analyses the rights and liabilities of both medical professionals and patients, especially the right of being informed concent owned by the patients.The second part is the theoretical basis of medical negligence. The theory of allowance for risk and the principle of reliance are the two positions of negligence in criminal law theory, and the medical negligence is a typical form of criminal negligence. There is also some practical significance in researching the two major positions of criminal negligence. In the crime of medical negligence, the theory of allowance for risk and the principle of reliance can be applied to a certain extent to realize the principle of proportionate punishment to crimes.The third part is the content of medical negligence. The part mainly expounds the duty of care in medical negligence, the duty of caring the results and the duty of avoiding the harms. In the medical behaviour, medical professionals need to pay highly attention to the life and health of patients with the duty of care, and thus the interests of patients can be protected to the maximum. Besides, medical professionals should bear the burden to foresee and avoid the possible harm to the patients.The fourth part is the identification of medical negligence.The part mainly uses the comparative method and transplants the standards of medical level from Japan and the standards of medical negligence from the United States to the judicial practice in China, analyses the standards of medical negligence, and then elaborates some simple ideas on the determination standards of medical negligence. Apart from the general determination standards, other various factors that make influences on medical negligence need to be considered are discussed in this part as well.The fifth part is the criminal liability and legislative proposals for medical negligence. Nowadays, the theorists can not make an agreement at whether the medical professionals commit medical negligence should undertake their legal liabilities. The part analyses the criminal significance of medical negligence and advances that the medical professionals commit serious medical negligence should undertake the legal liability. Based on the existing legislation of medical negligence, this paper superficially puts forward some suggestions on models of legislation, elements of crime and applications of punishment.