The Cognizance Of Negligence In The Crime Of Medical Malpractice

With the high development of medical technology,medical care,on the one hand,could work better on patients.On the other hand,the high risk behind medical behavior makes some medical treatments become primary grounds of medical tangles.Besides,the growing number of patients,as well as the natural uncertainty of treatments,has been a catalyst boosting the number of medical accidents.However,there has been a distinct disagreement towards the identification of medical malpractice,since the crime of medical accident has been failed to play a principle role——and the inappropriate government intervene,should also be blamed.Additionally,the rising of various social networks has heated the public discussion towards medical accidents,making each one of medical malpractice highly noticed.In the situation mentioned above,it is fairly important to set up a site of practical and systematic standards,which could be employed to judge medical malpractice.Consequently,the purpose of criminal legislation could be cleared and the typical conflict between medical departments and patients could be relieved the author aims to make an in-depth analysis of the crime of medical malpractice,and explore the standard of medical negligence identification from the level of objective duty of care and subjective duty of care through illegal and responsible aspects.In under the framework of the theory of criminal negligence,can be found,correction of the old negligence theory put negligence liability element,to discuss,the new negligence theory is not only belongs to the liability element content,more is behavior person to objective breach of duty of care,whether to execute the rationality of the behavior make accurate judgment,therefore,the behavior is illegal level concept.Although the two theories have different emphases in the specific analysis of the crime of medical malpractice,in essence,they both lead to the same goal,which can be divided into two levels of analysis,namely,to solve the problemof fault identification in the practice of medical malpractice by comprehensively considering the objective duty of care and the subjective duty of care.This paper means to analyze the medical malpractice and China's theory of negligence in criminal law.From the perspective of new theory of negligence,this paper attempts to discuss a standard of medical negligence identification,under the concept of subjective and objective duty of care of crime of medical accident.In the framework of excess theory of criminal law,most recent ideas suggest that executors' judgement of their behavior should be mainly considered,instead of those factors of responsibilities.By resorting to this point,this paper focus on pervious failures towards identifying the medical malpractice.There are totally five sections,in which the first section states the current problems of fault identification in term of crime of medical accident.Second part lists some basic concepts of malpractice in the context of crime of medical accident,and expresses what makes fault identification blurred in the term of crime of medical accident.Then,by discussing the excess of criminal law,this paper shows the contribution on medical fault identification by adopting the fault theory,and thus to state the main points of this paper.The remaining sections discuss the medical negligence judgement from the perspectives of objective and subjective duty of care respectively,to give some opinions on practical methods of identifying.