A Study On The Identification Of "Serious Irresponsibility" For The Elements Of Medical Accident Crime

The subjective and objective synthesis theory advocates that serious irresponsible behavior is caused by the perpetrator’s serious irresponsible mentality.Therefore,there is an internal connection between the subjective and objective aspects of the constitution of the medical malpractice crime,which is a manifestation of the integration of subjective and objective.The focus of the determination of serious irresponsibility is whether the behavior violates medical regulations and routines of diagnosis and treatment,whether it has the ability of medical attention and whether it violates the obligation of medical attention.Article 56 of "Standard for Prosecution of Cases(1)" is currently the main application and reference standard for violating medical regulations and rules.Articles 6 and 7 of Article 56 serve as the bottom line clauses,and there is no The specific manifestations of routine behaviors are clarified,and only belong to several common forms of external behaviors that violate industry rules and regulations.This is because the routines of diagnosis and treatment belong to the professional knowledge in the medical field,and they are in a stage of constant change with the development of medical technology.Therefore,it is not appropriate to clearly stipulate the routines of diagnosis and treatment.The problem of drug allergy determination also shows that the core problem of the "seriously irresponsible" determination problem is not the violation of medical regulations.The current judicial practice for the identification of routine diagnosis and treatment operations is to refer the issue to the Medical Association for medical accident identification.However,the determination of the facts of the case and the responsibilities of the actor,etc.based on the medical malpractice appraisal will directly affect the result of the judgment,thereby bypassing the requirement of "serious irresponsibility" and directly deciding the case with the conclusion of the medical malpractice appraisal.Instead of objectively imputing.Therefore,while judicial practice refers the question of whether to violate the routines of diagnosis,treatment and care to the Medical Association for evaluation,it should be necessary that the medical personnel have the corresponding medical attention.As far as the determination of attention ability is concerned,at present there are theoretical differences in judgment standards in the academic world,namely,the three different standards of subjective theory,objective theory and comprehensive theory.Both "subjective standard theory" and "eclectic theory" exist.For practical problems,the objective standard says that the general attention ability standard,that is,the duty of attention and attention ability of qualified medical practitioners with the same knowledge and skills in this field,is a general standard for determining whether they have medical attention ability.The medical attention obligation is divided into two aspects: result precaution attention obligation and result avoidance obligation.The specific determination of violation of result prediction attention obligation mainly focuses on misdiagnosis and inappropriate treatment.The specific determination of violation of result avoidance obligation includes abandoning dangerous behaviors and improving safety attention.aspect.