The Determination Of The Standard Of Medical Negligence The Medical Level At That Time

Article 57 of the Tort liability law of the people's Republic of China states that if the medical staff fails to fulfill the corresponding diagnosis and treatment obligations with the medical level at that time in the diagnosis and treatment activities,causing damage to the patients,the medical institutions shall bear the liability for compensation.This article makes it clear that the standard to judge whether the medical staff has fulfilled their duty of care is whether their diagnosis and treatment activities have fulfilled the corresponding diagnosis and treatment obligations with the medical level at that time.However,the current law does not give a clear response to how to judge whether the diagnosis and treatment activities of the medical party conform to the corresponding diagnosis and treatment obligations of the medical level at that time.Therefore,the writing purpose of this paper is to clarify a set of recognition criteria,that is,how to judge whether the diagnosis and treatment activities of the medical party are in line with the medical level at that time,so as to judge whether the medical party has fulfilled its due duty of care and whether there is medical negligence in the diagnosis and treatment activities.Through this identification method,the court can make a more clear and reasonable judgment on whether the diagnosis and treatment activities meet the medical level at that time in the process of hearing medical tort cases,so as to determine whether the medical negligence exists and whether the infringement is constituted.In this paper,empirical research,literature research and comparative research are used.500 cases about judging whether the diagnosis and treatment activities are in line with the medical level at that time were selected from www.faxin.cn,and the judgment methods shown in the above judgment documents were analyzed and summarized for research.At the same time,by referring to the relevant monographs and articles of jurists,and comparing the different practices in this field at home and abroad,we can conclude that the practice of judging whether the medical diagnosis and treatment activities conform to the medical level at that time described in this paper.That is to say,under the scope of tort law,the set of recognition standards first is to judge whether the diagnosis and treatment activities of doctors violate laws,regulations,rules and other norms,including mandatory diagnosis and treatment norms,which are all displayed in the form of laws,regulations and rules.If they are violated,the diagnosis and treatment activities should be recognized as not fulfilling the corresponding diagnosis and treatment obligations with the medical level at that time,and there are medical obligations Medical negligence.If not,consider all kinds of reference diagnosis and treatment norms,pay attention to the distinction between strong reference diagnosis and treatment norms and general reference diagnosis and treatment norms,as well as the judicial application of different types of diagnosis and treatment norms.Note that the grasp of diagnosis and treatment norms here requires the judge to refer to the medical accident appraisal opinions issued by professional organs rather than copy them completely;at the same time,it cannot be directly identified For the diagnosis and treatment activities that did not reach the medical level at that time,the external factors such as medical institution factors,medical personnel factors,doctor's independent discretion factors,patient's own physical factors,regional factors and so on need to be comprehensively identified.