The Determination Of Medical Technology Negligence

Medical negligence is not only the core element of the medical liability,but also the focus of the dispute between the litigants.In practice,the determination of negligence is the key link of such cases.Chapter 7 of the tort law(hereinafter referred to as the tort law)stipulates four types of liability for damage.In addition to the liability for medical products,the fault principle in Article 54 of the tort law is applicable to the determination of the other three types,namely,the medical ethics damage,the technical damage and the fault in the management damage.In practice,there are two ways to judge the medical technical fault.According to the fault principle,whether the Article 57 of the tort law fulfills the "diagnosis and treatment obligation corresponding to the medical level at that time" is taken as the judgment standard;in addition,the existing fault can be inferred according to the provisions of Article 58,paragraph 1.However,the "medical level at that time" itself is an abstract concept,and the academic interpretation of this concept mostly falls into the "diagnosis and treatment standard" pattern,lacking the legal evaluation of the "medical level at that time".In practice,there are few courts to make reasoning when applying this article.In addition,due to the complexity and professionalism of diagnosis and treatment activities,the abovementioned two determination paths have a relatively strong impact on the appraisal opinions Strong dependence.But the appraisal opinion is to investigate the diagnosis and treatment behavior from the medical professional level,and the judgment basis is the provisions of medical laws,regulations and medical norms on the operation process of diagnosis and treatment behavior.But the judicial trial is to identify the fault from the legal level.In addition to considering the rationality of the diagnosis and treatment behavior itself,it should also consider the impact of other factors on the behavior of medical personnel at that time.In 2017,the interpretation on Several Issues concerning the application of law in the trial of medical damage liability disputes(hereinafter referred to as the interpretation)was issued.Article 16 of the interpretation explains the "medical level at that time",which plays a guiding role in the judgment of medical technical negligence,but there is still room for further discussion.First of all,although Article 57 and item 1 of Article 58 of the tort law are integrated into Article 16 in the interpretation,it seems that Article 58 is regarded as the standard of judging fault in the sense of context,which changes the status of Article 57 of the tort law.However,this is to cater to the performance of trial practice.The "proper consideration" of other factors should be understood as "should be considered",that is,the influence of various external factors such as comprehensive medical institutions on the medical level,under the condition of the medical level available at that time,the medical staff’s diagnosis and treatment obligation of "can be" should be defined,if it is met,there is no fault;otherwise,there is fault.Secondly,we should limit the application of diagnosis and treatment norms in the judgment of fault,and consider the effectiveness of each document,as well as the differences and diversity of diagnosis and treatment norms and routines.Only the official guidance related to diagnosis and treatment behavior itself can be applied.In addition,the significance of diagnosis and treatment norms in the judgment of medical technical negligence lies in the setting of "should be" diagnosis and treatment obligations under general circumstances.It is only the basic element in the judgment of medical technical negligence.Whether it violates the regulations of diagnosis and treatment norms has no direct relationship with the existence of negligence.The judge can’t judge that the medical staff doesn’t have the obligation of diagnosis and treatment because the standard of diagnosis and treatment doesn’t stipulate the obligation of diagnosis and treatment that should be abided by.Similarly,the judge can’t directly determine that there is no fault because the behavior of the medical staff meets the requirements of the standard of diagnosis and treatment.Finally,appraisal is not the only procedure of a case.The proportion of fault in appraisal opinions is analyzed from the perspective of forensic science.The proportion of civil liability should not be determined by fault participation,which is one-sided and simple.The regulations on appraisal basis are different in local appraisal opinions.The promulgation of the measures for the administration of medical damage identification(Draft for comments)only serves the category of medical disputes in the regulations on the prevention and treatment of medical disputes(hereinafter referred to as the new regulations).The concept of "medical damage" is slightly different from that in Chapter 7 of the tort law.It is more appropriate to understand the former as the identification of damage in pre litigation medical disputes.Therefore,the appraisal management method has no obvious influence on the appraisal of medical damage liability and medical accident.From the perspective of tort liability law,the judgment of medical technical negligence should be based on the objective judgment standard,that is,the violation of duty of care means the existence of negligence.The duty of care is not equal to the duty of diagnosis and treatment in medical habits,principles and norms.The duty of diagnosis and treatment that doctors should perform is in a dynamic change due to the influence of factors such as the current and local medical level.In practice,the obligation of diagnosis and treatment should be classified according to the objective criteria to provide help for such cases.