Confirmation On The Attention Duty Of Medical Malpractice Crime

The first part is the current judicial application of the crime of medical accident.Through the empirical research on the application of the crime of medical accident by many scholars and practitioners in recent years,the current application status and characteristics of the crime of medical accident are summarized:there is no basis for judging medical negligence in the crime of medical accident;The defendants are mostly concentrated in primary medical institutions and mostly belong to primary medical personnel.In judicial practice,both parties are usually encouraged to settle the dispute through negotiation or non-litigation dispute settlement mechanism,and reduce the punishment to the defendant through civil compensation.Put forward the difficulty of applying the crime of medical accident and introduce the difficulty of conviction.--in determining the duty of care.Firstly,it is difficult for the court to judge whether the medical personnel violated the duty of care,and secondly,there is no more specific provision for the expression of " serious irresponsibility".The second part is the theoretical reference of medical personnel's duty of care.This part firstly presents some theories about unpremeditated criminal,in academia of criminal law,and lead to the core issue of unpremeditated criminal,the definition of the duty of care,and puts forward the basic theory of the duty of care of medical personnel,by drawing lessons from the duty of care in the theory of unpremeditated criminal,and resent provisions about other unpremeditated criminal in professional work in our criminal law.Regarding the determination of the duty of care of medical personnel,several mainstream theories in the academic circle are listed:The principle of trust between medical personnel and between medical personnel and patients,the allowed risk theory,the medical standard theory,the Bolam test and the " two schools" theory.So as to provide a reference for the related medical unpremeditated criminal in our country.The third part is to study the core problem of the dilemma,it refers to medical personnel's duty of care.According to the current view in academia,the duty of care of medical personnel is divided into general duty of care and special duty of care.For the general duty of care of medical personnel,the existing difficult task,is to give definitions of unpremeditated "objective acts" and "subjective attitude" of the medical personnel precisely.As to the objective behavior,the foundations and boundaries of the duty of care are obscure.And consider to the unpremeditated attitude,the current judicial practice didn't draw enough attention to the thought of the doer.As for the determination of medical personnel's special duty of care,there are mainly some special duty of care,such as duty of explanation and duty of referral,and there are also differences in the determination of medical personnel's duty of care at different levels.The fourth part puts forward some judgment suggestions on the duty of care of the subject of medical accident crime in judicial practice.First of all,we should improve the specific criteria for judging the duty of care of medical personnel,including the responsible subject of the crime of medical accident and the relevant judicial interpretation of the judgment of the duty of care.In addition we should improve the corresponding medical appraisal procedure system and absorb experts in the medical field to participate in the trial during the trial process,which is conducive to the determination of the objective facts of the crime of medical accident.After that,other criteria for judging the duty of care in medical affairs are put forward,which are mainly based on the complementary exposition of the concurrence negligence,the principle of trust and the management negligence of medical institutions under the current team medical environment,so as to perfect the limitation of the duty of care for the subject of medical accident crime.