The Judicial Pplication And Legislative Perfection Of The Crime Of Medical Malpractice

In recent years,the steady development of China’s medical health and disease prevention has greatly improved the level of China’s medical industry.Due to the large population in China,medical resources and medical needs cannot be fully matched,which is also the cause of the tension between doctors and patients and the frequency of medical accidents.There are numerous cases of serious damage or death caused by medical malpractice.This paper consists of six parts.The first chapter is the introduction,which summarizes the research background and significance,methods of the topic,grass the overall context of the article,and further recognizes the significance of the research on the judicial application of the crime of medical accident and the legislative perfection.The second chapter is an overview of the crime of medical malpractice defining the relevant concepts of the crime of medical malpractice,and analyzing the characteristics of the crime of medical malpractice.This paper reviews the legislative evolution of medical malpractice crime from the western zhou dynasty to the qing dynasty,and briefly narrates the legislative status of medical malpractice crime in China.The third chapter through the judicial application of medical accident crime in jilin area as an example,the analysis of jilin regional medical accident crime judicial application present situation,characteristics and causes of the collected sample case for 56 cases,mainly from the malpractice of medical accidents caused by the formation,location,job category,patient health harmful consequences,sanctions and other dimensions in jilin area medical accident crime in the judicial application is analyzed.The fourth chapter through the above sample case analysis,found that the crime of medical malpractice in the judicial application process there are the following problems.The first point is that the scope of identification of the criminal subject of medical malpractice crime is not clear,and there are two disputes.Whether the scope of medical personnel should include administrative personnel,logistics personnel and whether medical institutions should be added as the subject of unit crime should be further studied.The second point is that the definition of duty of care and standard of care is not clear,and there has been a lack of unified identification standards.Scholars have considered the meaning of duty of care from multiple perspectives.There are three views in the recognition of the standard of attention:the general standard,the subjective one and the eclectic one.The third point is the unclear definition of "serious irresponsibility" and "serious harm to the health of the patient".In the criminal law,it is stipulated that the legal reason for the crime of medical malpractice is the serious irresponsible situation,but the specific situation is not enumerated,and the concept is not clear.The meaning of"serious harm to the health of the patient" also lacks clear criminal law basis,and there are disputes on the definition of the concept.There are mainly three viewpoints,namely criminal law standard,medical standard and serious outcome theory.The fourth point is in the medical accident identification system,first there is a conceptual difference in the qualitative problem of medical accident identification,then in the medical accident identification system identification subject,identification procedure,identification opinion also need to be further improved.The fifth point is in the crime of medical malpractice the highest legal punishment is too low,legal punishment allocation single problem.Chapter five puts forward corresponding Suggestions for improving the problems existing in the judicial application of the crime of medical malpractice.In terms of the subject of the crime of medical malpractice,it should be determined that the scope of medical personnel should not include administrative personnel and logistics personnel,and medical institutions should be added as the subject of unit crime.In terms of the duty of care and the standard of care,the meaning of the duty of care is clearly defined.Most scholars define the meaning of the duty of care as the obligation to foresee the result and the obligation to avoid the result.In terms of the identification of "serious irresponsibility" and "serious harm to the health of the patient",the source of responsibility and obligation should be clarified,and the criminal law standard and medical standard should be combined in the identification of the patient’ s health.In the aspect of medical malpractice appraisal system,the appraisal subject,appraisal procedure and appraisal opinion are improved and perfected.In the.aspect of legal punishment for the crime of medical malpractice,the maximum legal punishment shall be raised,and the penalty of fine and qualification shall be increased.The sixth part is the conclusion,a brief summary of this paper.Taking the judicial application of medical malpractice crime in jilin province as an example,this paper puts forward some problems in the judicial application of medical malpractice crime,so as to balance the contradiction between doctors and patients and establish a fair and scientific identification system of medical malpractice crime.