| The relationship between medical institutions and patients has always been a tight one in our social life, becoming the focus of the whole society. The liability of medical damages has begun to have unified regulations since the Tort Liability Law came into effect. Nowadays, our current law has established the standard of medical negligence that the Tort Liability Law is the major one, supplemented by other laws, administrative regulations, rules and medical routines. But in the judicial practice later, the difficulty of medical negligence cognizance hasn`t been effectively overcame yet and the medical negligence cognizance that court makes causes lots of disputes from medical institutions and parties. In this case, the relationship between medical institutions and patients is still in a tense state. In order to solve the difficult problems in the judicial practice, and seek a reasonable and scientific standard of medical negligence cognizance that is easy to operate in judicial practices, this paper puts forward the opinion of constructing our medical negligence cognizance model: various cognizance standards should be implemented aimed at technical duties of care in diagnosis and treatment, ethical duties of care in occupation and medical institutions` organic duties of care on the basis of typification of the medical duties of care, by analyzing the standard of medical negligence cognizance established by our current law and 194 cases disputes of medical damage liability, considering the relative research achievements in the domestic and foreign academic circles and judicial practices circles according to the analysis of new situations of the standard of medical negligence cognizance in the legislative and judicial practices.The first part pays attention to our current standards of medical negligence cognizance. Our current law has established the standard of medical negligence that the Tort Liability Law is the major one, supplemented by other laws, administrative regulations, rules and medical routines; in the meanwhile, the author collects 194 cases of disputes of medical damage liability from four provinces such as Beijing, Shanghai, Chongqing and Sichuan, and analyses specific standards of medical negligence and relative factors considered by courts when they found this kind of cases.The second part analyses the problems of the standard of medical negligence cognizance, on the basis of the researches mentioned in the first part. According to the analysis of three aspects such as the foundation, body and regulations of medical negligence, the author reveals the present situation of medical negligence cognizance: the standard in our current law is difficult to apply, the judge`s judgment is limited by his profession, the dominant power of medical negligence is dislocated and judicial authentication rules of medical faults are still not unified.The third part puts forward the opinion of construction of our medical negligence cognizance model. This part analyses standards of medical negligence cognizance in Japan, Germany, England and America and the existing discussions of medical negligence cognizance in our academic circles. The cognizance of medical negligence is the medical institutions and clients` judgment of medical duty of care in the course of diagnosis and treatment. Therefore, medical duty of care is the key to medical negligence cognizance; construction of our medical negligence cognizance model needs to typify medical duties of care, and then take various standards of cognizance aimed at technical medical duties of care, ethical duties of care in profession and organized duties of care of medical institutions.The forth part further elaborates specific standards and objective standards in this model as for the opinion mentioned above. Unified specific standards of medical duties of care is the one that a reasonable physician should reach, the lowest standard that medical institutions and clients must observe, and a legal standard, mainly being provided in laws, administrative regulations, rules and medical routines. The objective standards of technical duties of care in medical diagnosis and treatment are to make a further judgments based on the specific standards, considering these aspects such as medical level, level of hospitals, physicians` profession, medical risks and the natural prognosis of diseases. |
