A Study On The Attention Duty In The Malpractice Crime

Duty of care is the central issue in the negligence theory. Malpratice crime stipulated inArticle335of Criminal Law of the People’s Republic of China is a typical professionalcriminal negligence. Its essential subjective requirement is the negligence or overconfidenceof the medical personnel at work, i.e. the medical personnel violates the due of care.Therefore, the study on due of care of medical personnel will benefit to the recognition ofmedical accident. In accordance of the above mentioned, this paper will discuss the due ofcare of the medical personnel in three parts.The first part is the introduction of due of care in medical accident. It respectively statesthe position of due of care in the changing of negligence theory, its characteristics, and itscontent. Then it further defines the concept on due of care to medical personnel, exposing thecharacteristics of due of care to the medical personnel. In addition, it analyzes the source ofmedical personnel’s due of care and determines two basic principles, i.e. the principle toprotect the benefits of the patient and the reasonable principle, which are adopted to define thedue of care to medical personnel.The second part concerns with the due of care in medical accident. The medicalpersonnel should conduct the general due of care in medical treatment, i.e. duty of resultforecast, duty of result evasion, and the special attention of duty. The later includesexplanation obligation, referral obligation, admission obligation and some special obligations.It points out the violation on the duty of care in medical personnel is the premise of thenegligence crime.Part three is the judicial cognizance on the duty of care in medical accident. One of thepurposes to the study on duty of care of the medical personnel is the judicial cognizance onthe violation of due of care. This part carries on the analysis upon the relationship betweendue of care of medical personnel and attention ability, permitted risk theory, reliance principle,etc. It points out that the “medical standard” should become the standard on the judgment ofthe medical personnel’s due of care. The insufficient on reaching this standard is consideredas the medical negligence. Meanwhile, from the hindrance reasons of the medical personnel,it discusses the reasonable allocation of medical risk, the reliance relationship between themedical personnel, and the relationship between the medical personnel and the patients, andthe reasonable division on coverage of the due of care.