Research On The Doubtful Points Of The Crime Of Medical Malpractice ——Based On The Analysis Of Huang’s Case

Medical science is a basic discipline,the basic guarantee for the rapid and efficient development of all aspects of society,and the foundation of human health and a better life.In the process of diagnosis and treatment,medical staff apply medical means and technology to treat patients,launch medical behavior,especially invasive medical behavior,and treat patients.In special cases,it may cause serious damage to the patient’s body and even life.When such serious damage is caused by medical personnel seriously violating the technical norms of diagnosis and treatment,they may be convicted and punished for the crime of causing medical accidents.Article 335 of China’s criminal law expressly stipulates the crime of medical malpractice,but from the implementation effect of the crime,there are a lot of disputes about the identification of the crime,whether in practice or in theoretical research.Due to the non-uniform standards related to the application of law,the judicial organs have great disputes over some cases in practice,which may lead to different judgment conclusions on similar cases,which will have an adverse impact on the correct application of criminal law and judicial authority.Through specific cases and actual medical conditions,this paper evaluates the nature of beyond scope medical practice,the identification of damage consequences and the identification of medical negligence,analyzes and demonstrates in combination with the existing theoretical knowledge,and seeks more reasonable ideas and views,in order to provide reference for the judicial practice of the crime of medical malpractice.In the judicial judgment of Mr.Huang suspected of the crime of medical malpractice,the following three controversial issues have arisen:first,the qualitative problem of doctors practicing medicine beyond the scope.There are some disputes about whether medical personnel with class a physician qualification engage in class B medical behavior is in line with the main elements of the crime of medical malpractice or the crime of illegal medical practice.In view of the commonality and professionalism of the medical profession,as long as the medical personnel have the professional qualification of a certain type of doctor,they should not be recognized as the "person who has not obtained the professional qualification of doctor" in the crime of illegal medical practice.Otherwise,it will expand the scope and intensity of the crime of illegal medical practice and violate the principle of legality of crime and punishment in the criminal law.Second,the standard of damage consequence identification.As a negligent crime,the crime of medical malpractice can be convicted and punished only when there are specific damage consequences.The determination of damage consequences is related to crime and non crime.There are three theories in practice,namely,medical standard theory,criminal law standard theory and compromise theory.The former advocates that the damage consequences should be determined according to the regulations on the handling of medical accidents and the classification standard of medical accidents,and the middle advocates that the damage consequences should be determined according to the identification standard of the degree of personal injury,The latter advocates combining the two to consider the consequences of damage.Considering the requirements of the unity of criminal law,although the crime of medical malpractice has its particularity,it is not suitable to have different standards for the "damage consequences" of the crime in the same criminal law,and fixed standards should be applied.Therefore,the theory of criminal law standard is worth advocating.Third,the identification of medical negligence is controversial.It comes down to the determination of "serious irresponsibility".Although this view belongs to the category of subjective aspect,in practice,when determining whether it belongs to "serious irresponsibility",we should take whether there is a serious violation of relevant systems such as diagnosis,treatment and nursing routines objectively as the basis of judgment,combine the subjective aspect with the objective aspect,and deduce the subjective mentality from the objective behavior.