On The Duty Of Care In Medical Malpractice Crime

In negligent crimes,the essential attribute of criminal negligence is the violation of the duty of care,and the establishment of negligence is to determine whether the duty of care has been violated.Medical malpractice crime is a typical crime of professional negligence.The research and determination of various aspects of its duty of care can play a vital role in determining a medical malpractice crime and provide a reliable and feasible operation method for the identification of the medical malpractice crime in judicial practice.As the base of research,through defining the concept of the duty of care in medical malpractice,the characteristics of the duty of care in medical malpractice were revealed.Then,the article analyzes the basis of the duty of care in crime of medical malpractice and reveals the actual reasons and forms of the duty of care in medical malpractice from two aspects: substance and form.The content of the duty of care in medical accident includes the obligation of the foresighted result and the obligation of the avoidable result.The possibility of foreseeing the consequence and the possibility of avoiding the consequence are the prerequisites for the objective duty of care in the crime of medical malpractice.And lack of that can negate the existence of the duty of care of the medical actor.Capability of care is the premise of the subjective duty of care in the crime of medical malpractice.Lack of capability of care subjectively can negate the requirement for the medical actor to perform the attention obligation.The judgment of the actor's capability of care should be based on his own circumstances and adhere to the subjective theory.The duty of care in medical malpractice crime is not unlimited.The limiting factors of the duty of care in the crime of medical accidents include the allowed danger theory and the trust principle.In the process of application,not only the positive application conditions should be examined,but also the negative application prerequisites should be clearly defined.Judgment in the judicial determination that the medical actor violates the duty of care should be completed in constitution of crime and be conducted in the logical order from objective duty of care to subjective duty of care.Violation of the duty of care is the core connotation of the "serious irresponsibility" of medical actors.In the judicial determination,the source,basis and content of "responsibility" can be determined by judging the source,premise and content of the duty of care for the crime of medical malpractice.The judgment of "serious" should be related to the difficulty of the attention effort required to perform the duty of care and the degree of attention effort actually paid by the medical actor,and the greater the difference between the two,the more "serious" the irresponsible situation.When there is a conflict of attention obligations for the crime of medical malpractice,the criterion for determining whether the medical actor violates the duty of care lies in whether the care duty with higher value and urgency is selected to be performed first and the harm result is effectively avoided.