A Study On Medical Negligence In Crime Of Medical Accident

It has been a trend for the public to spontaneously share information with the rise and development of new media such as micro-blogs and WeChat.Consequently,topics on medical disputes have been continuously diffused and spread,which attracts more and more attention from the whole society.Meanwhile,since many medical disputes are closely related to the negligence of medical staff,China's criminal and civil law scholars attach great attention to the concern of medical negligence.Theoretical framework and legislative suggestions on medical negligence have been proposed by the use of foreign theories and legislation for reference by many of these scholars.However,regulations on medical malpractice in China's criminal law are still so sketchy that there are still blind spots on the application of these regulations.This study here aims at the discussion of the concept and features of medical negligence in crime of medical accident,the theoretical basis,thejudging standards and the allocation of negligence liability in medical teams by combing through and analyzing opinions on medical negligence,thus trying to give a clearer explanation of the significance of medical negligence in science of criminal law,promoting the improvement of professional skills and ethics of medical staff.This study is divided into four parts:The first part is the concept and characteristics of medical negligence in crime of medical accident.It discusses the concept of medical malpractice,and believes that its concept should reflect the subjective and objective factors;analyzes the characteristics of medical negligence,and points out that the main body of medical malpractice crime should be medical personnel and medical institutions,and the legal interests infringed on are the life and health of the patients;points out the boundary of medical negligence between criminal law and civil law,as well as expounds the difference between medical malpractice crime and medical negligence tort.The second part is the theoretical basis of the negligence in crime of medical accident.It points out the essence of medical negligence is the breach of the duty of medical care,and the contents of the duty of care are analyzed,namely,the obligation to foresee the result and the obligation to avoid the consequences;introduces the sources of the duty of medical care,and expounds another essential factor of medical negligence----the attention ability.The third part is about the judging standard of the negligence in crime of medical accident.It selects distinguished standards for the determination of medical negligence in Anglo-American Legal System,Continental Legal System and in the practice of Mainland China and Taiwan region,and then offers a proposal to identify China's medical negligence crime standards on this basis.The fourth part is the responsibility assignment of the negligence in crime of medical accident.It analyzes the coincidence negligence,joint negligence,supervision negligence and other negligence occurred in modern organizational medical treatment.According to the division of labor of each actor in the organization as well as the general theory of the criminal law,the criminal responsibility of a person can be determined.