The Study Of"supervisory Negligence" In Medical Malpractice Crimes

In tandem with modern medical technology advances and medical reform,medical practice has developed into a model where team and cross-level cooperation are more common.China’s criminal justice practice is more general and vague in determining the negligence of medical malpractice crimes,and in most cases only the direct negligent actor is pursued,rarely involving the punishment of the subject responsible for supervision and management negligence.Medical supervision negligence is not simply equivalent to direct medical negligence,and only holding the directly negligent person criminally liable after the occurrence of medical malpractice damage will omit the evaluation of medical negligence crimes,and cannot achieve the normative purpose of the establishment of the crime of criminal law.When multiple people are involved in the same treatment process,the distinction between direct medical negligence and supervisory negligence,and the clarification of the boundary of criminal liability of each person due to the mistakes of one or more people in the team,is an area that needs urgent attention in criminal law.Study of negligence liability in medical criminal law should not stop at personal liability,the purpose of this paper is to discuss the realistic dilemma of the determination of supervisory negligence in medical malpractice and the path of its elimination,with the research path of"problem formulation-dilemma exploration-problem solving",hoping to provide reference for regulating the determination of supervisory negligence in medical malpractice.The first part focuses on the current situation and problems of the application of negligent supervision of medical malpractice crimes.Combined with the introduction of cases related to negligent supervision of medical malpractice crimes,among which are the case of Liang who died from anesthesia,the case of Xu and other medical damage disputes and the case of strangulation death in a psychiatric ward,analyze and master the current situation of medical supervision negligence in judicial trial,such as the gap of medical supervision negligence,the unclear definition of medical supervision negligence,and the unreasonable pursuit of responsibility of medical supervision negligence subjects.And from the current situation of the application of medical supervision negligence cases to sort out the causes of the formation of the real dilemma of the criminal liability of medical supervision negligence,specifically including judicial trials due to the lack of applicable standards and restrictions,the content of the duty of care of medical supervision negligence is difficult to grasp,medical supervision negligence liability subjects are not uniformly defined,the adjudication argument is too dependent on the conclusion of the judicial appraisal,the results of the ruling due to the large differences in the configuration of penalties and other five aspects,which need to be resolved in order to correctly identify the liability of negligence in team organization medical.Part Ⅱ further examines liability for supervisory negligence in the field of medical malpractice crimes,analyzing the subjects of liability for medical supervisory negligence,medical practice patterns and supervisory negligence,the duty of care in medical supervisory negligence,the application of the principle of reliance in medical supervisory negligence,and medical supervisory negligence and negligent competition.The supervisory relationship in the medical process is very complex.In addition to the traditional supervisory negligence theory that medical supervisory negligence exists in the relationship between higher and lower levels of leadership,the medical group members and medical institutions in the same treatment activity may also constitute medical supervisory negligence liability in specific cases.Distinguish medical supervision negligence,propose a typology of medical acts in group medical care,and cover the types of supervision negligence of medical acts by corresponding the broad and narrow medical supervision negligence to the organizational management model and the treatment business model,respectively.The content of the duty of care in medical supervision negligence is studied,including the duty to foresee the results of medical acts that may cause damage and the duty to avoid the results.At the same time,the influence of medical supervision negligence’s duty of care on the determination of medical supervision negligence is affirmed,and the modified objective theory is favored as the standard for the comprehensive judgment of medical supervision negligence’s duty of care.The principle of reliance has an important place in the theory of negligence,and its introduction into the field of medical supervisory negligence as a deterrent to liability for negligence requires full consideration of the applicable prerequisites,such as the existence of a clear division of labor system and the basis of reliance.In team organization medical care,supervisory negligence often competes with the direct negligent acts of the supervisee,but its characteristic of not being equivalent to ordinary negligence crimes determines that it is controversial to treat team medical negligence exclusively by negligent competition,and medical supervisory negligence cannot be studied only through the position of negligent competition theory.The third part proposes a conceptual path to regulate the determination of liability for supervisory negligence in medical malpractice crimes in response to the aforementioned practical dilemma.First,from the legislative level,we should re-examine and reposition the responsibility of medical negligence in the field of medical malpractice,and clarify the criteria for conviction of medical negligence,including establishing medical negligence as a type of medical malpractice crime;determining the subjects of responsibility for medical negligence;coordinating the provisions of the duty of care in medical negligence;and unifying the judicial interpretation with the standard of medical "serious consequences".Second,from the judicial perspective,distinguish the different degrees of responsibility for medical supervision negligence,optimize the adjustment of the configuration of the penalties for medical malpractice crime supervision negligence,specifically by increasing the qualification penalty and property penalty for medical supervision negligence subjects;prioritizing the investigation and application of probation for medical supervision negligence subjects;and making full use of the non-prosecution system of the Criminal Procedure Law.Three from the peripheral assistance,with the identification of complex criminal relationships in the medical field,improve the judicial peripheral system for supervising the application of negligence in medical malpractice crimes,by moderately examining the use of the application of the criminal reconciliation system of the parties;explore the establishment of a jury pool with a medical background;establish a medical professional issues seminar questioning organization.Combined with the aforementioned exploration of the path of medical supervision and negligence regulation,we hope to more effectively guide the practice of judicial decisions,regulate medical negligence in the field of medical criminal justice in a prudent and standardized manner,balance the rights and interests of both doctors and patients,and thus achieve the purpose of maintaining the healthy development of the medical industry and social stability.