医疗过失的刑法学研究
发布时间：2018-07-28 16:04
【摘要】：现阶段,我国的医疗纠纷急剧增长,且愈演愈烈,这已成为当前的社会焦点问题,医患关系紧张成了人们普遍的认识,医患之间的信任降到了谷底。因此,如何在追求社会和谐的大目标下,合理、有效地解决医疗纠纷,已然成为缓解社会矛盾,维护社会稳定的重大问题。现阶段医疗纠纷激增的原因有多种,其中医疗事故频发是主要原因之一,而医疗事故中有相当大一部分是由于医疗机构以及医疗人员违反医疗规章制度而引起的。当前,我国解决医疗事故纠纷的主要途径是医疗机构承担医疗损害赔偿的民事责任,追究行政责任(如责令暂停执业活动或吊销执业证书等)的情况相对较少,而追究刑事责任的更是少之又少,其直接表现就是,1997年《刑法》为了惩治医疗过失犯罪而新设的医疗事故罪在实践中几乎形同虚设。也就是说,过于依赖民事赔偿,而忽视民事、行政、刑事责任的衔接与配合,尤其是刑法在规制医疗过失,预防医疗责任事故方面无法发挥应有的作用,是我国医疗事故法律规制的现状和问题点,同时也是无法对医疗事故进行有效的预防,从而减少医疗纠纷的重要原因。 目前,刑法在规制和预防医疗责任事故方面无法发挥应有的作用,其原因是多方面的,因此,如何改变这一局面,不是单靠刑法就能彻底解决的问题。但是这并不意味着在刑法力所能及的范围内无法找出一定的解决方案。从刑法学的角度讲,医疗责任事故属于业务过失犯罪的范畴,因此,对医疗过失这一核心要件进行系统而深入的研究对于医疗责任事故的刑法规制而言具有根本性意义。我国刑法在分则中单设了处罚医疗过失犯罪的医疗事故罪,因此在该罪中探讨医疗过失这一要件不可谓不当,这也是我国理论界的通行做法。但是,从刑法学的角度研究医疗过失的意义并不局限于医疗事故罪的认定,而且这种研究路径导致我国对这一问题的研究缺乏体系性和深度。鉴于此,本文拟从医事刑法的基础理论角度出发,紧紧围绕医疗过失这一个要件展开较为全面、系统、深入的研究,而对于医疗行为及其主体的合法性、因果关系、危害结果、医疗事故鉴定等医疗事故罪中的其他问题则不予涉及,或者只在必要的限度内予以涉及。 不同于我国大陆绝大多数学者采用的研究模式,本文试图在构建刑事医疗过失的理论体系的基础上,对这一问题展开较为详尽的研究。这一理论体系包括医疗过失概述、医疗过失本体论、医疗过失认定论以及医疗过失限制论等四部分。全文共分五章,除了第一章绪论和结语之外,第二至第五章分别对应这四部分。 第一部分为医疗过失概述(全文第二章),共分两节。医疗过失是“医疗行为”过程中发生的过失,同时,医疗行为的特征对于医疗过失的认定具有重要影响,因此,本章第一节首先探讨了医疗行为的概念与特征。本文认为,应当先将医疗行为与医疗类似行为区别开来,在此基础上,医疗行为可以根据医疗目的的有无划分为广狭两义。本文中的医疗行为采广义,但由于狭义的医疗行为更具有普遍性和代表性,因此,下文中的理论探讨和案例分析将以狭义的医疗行为为主。在界定了医疗行为的概念之后,本节探讨了对医疗过失的认定具有重要影响的医疗行为的一系列特征,它们分别是：危险性、有用性、专业性和不确定性。 本章第二节主要探讨了医疗过失的概念与分类。首先,本文认为医疗过失应当界定为：医疗行为人在具体医疗行为过程中违反了必要的注意义务的情形。即刑事医疗过失的主体不包括医疗机构,且医疗人员在具体医疗行为过程之外违反相关注意义务的情形也不能称之为医疗过失。其次,关于医疗过失的分类,医疗过失可以从不同的角度进行多种分类,本节选取了对医疗过失的刑法规制具有总论性指导意义的两种分类展开了较为深入的探讨,它们是：单纯技术性过失与医学判断过失,医疗责任过失与医疗技术过失。其中,第一种分类是刑事医疗过失理论体系的基石与出发点,本文亦将该种分类贯彻于相关问题的分析和论证,即刑法应当将单纯技术性过失作为规制的重点,而就医学判断过失而言,刑法的规制对象应当仅限于明显脱离医疗水准者。 第二部分为医疗过失本体论(全文第三章),共分四节。这一部分属于医疗过失的基础理论与一般理论,它是对具体的医疗过失进行抽象与总结而形成的,因此,对于医疗过失的具体认定具有总论性的指导意义。 从根本上讲,医疗过失属于过失的一种,因此,过失犯理论的基本立场将直接决定如何分析和论证医疗过失的相关问题,以及对这些问题持何种观点。基于此,本章第一节首先探讨了大陆法系国家和地区有关过失犯理论的基本立场,并得出结论：新过失论总体而言更具有合理性,而且也更适合分析医疗过失的相关问题。其次,我国大陆在过失犯的基本立场上不存在观点的对立,本文经分析认为,我国大陆的基本立场与新过失论之间更具有亲和力。据此,本文从行为无价值二元论出发,在全文中贯彻了新过失论的立场和观点。 第二节紧密结合医疗领域(医疗行为)的特点,重点探讨了医疗人员注意义务的内容和根据。就注意义务的内容而言,本节探讨了医疗人员在各种具体医疗行为中负有的共通的结果预见义务与结果回避义务,这些义务体现了医疗过失区别于其他过失的特殊性。就注意义务的根据而言,本节探讨了与保障具体医疗行为安全密切相关的注意义务的来源与根据。 第三节主要探讨了医疗人员的注意能力。本文认为,在普通过失中,注意能力的判断标准应采折中说,而在业务过失,尤其是医疗过失中,应采客观说,即能否预见和避免危害结果,应当以行为当时一般医疗人员能够认识的情况以及行为人特别认识到的情况为判断资料,在此基础上,以一般医疗人员能否预见和避免该危害结果为标准进行判断。而“一般医疗人员”应当界定为：具有相同或相似医疗条件的地区或医疗机构中,具有相同或类似的职称或地位的,行为人实施的医疗行为所属的专业领域中的医疗人员。 第四节探讨了医疗过失的判断标准,它们分别是：医疗水准、裁量性以及紧急性。医疗水准是医疗过失的一般性判断标准,但是应当充分考虑医疗水准的地域性差异。裁量性作为医疗过失的判断标准,主要适用于医学判断过失,从效果上看,裁量性具有限制医疗过失成立的作用。紧急性作为医疗过失的判断标准,其作用在于紧急情况下缓和医疗人员的注意义务而适用较低的认定标准,但不是免除注意义务。 第三部分为医疗过失认定论(全文第四章),共分五节。研究医疗过失的直接目的就是为了认定某种医疗行为有没有违反相关的注意义务,因此,这一部分对于司法实践而言,具有更直接的指导意义。医疗过失是医疗行为过程中发生的过失,因此医疗过失的认定必须结合具体医疗行为进行。但是,医疗行为种类繁多,而且随着医学的发展,其内容又在不断地被细分化,因此探讨所有医疗行为过程中发生的过失显然不现实。基于此,本章选取了实践中容易引发医疗事故的诊断行为、注射行为、输血行为、麻醉行为以及手术行为作为考察对象,对实施这些医疗行为时发生的过失进行概述之后,结合具体案例,探讨了这些医疗过失的具体认定问题。具体而言,第一节的诊断过失一般包括诊断过程中的过失与诊断内容的过失。第二节的注射过失一般包括：注射的必要性以及时机的判断过失、有关注射液的种类以及剂量的过失、有关注射的部位以及方法的过失、注射器具的消毒过失,以及注射后的观察过失等。第三节的输血过失一般包括：采集血液过程中的过失与输入血液过程中的过失。第四节的麻醉过失一般包括：麻醉适应性的判断过失、麻醉剂以及麻醉方法的选择过失、麻醉过程中的技术操作过失,以及麻醉后的患者管理过失等。第五节的手术过失一般包括：手术必要性和可行性的判断过失、手术时机的判断过失、手术方法的选择过失、手术过程中的技术操作过失,以及手术后的患者管理过失等。 第四部分为医疗过失限制论(全文第五章),共分两节。以上从正面探讨了何种情况下成立医疗过失,而这一部分将从反面研究医疗过失的阻却事由。关于阻却过失犯成立的事由,理论上一般认为有被允许的危险理论,危险分配理论以及信赖原则。就被允许的危险理论而言,医疗人员遵守医疗规章制度和诊疗护理常规是适用该理论的前提和核心要件,但是,遵守了这些规定时,本身就不存在客观注意义务的违反,或者说不满足犯罪构成的客观方面,因而自始不成立过失犯。也就是说,作为过失犯的阻却事由,被允许的危险理论不具有独立意义,因此本章将不对此展开单独的讨论。关于危险分配理论,一般认为其与信赖原则是互为表里的关系,因此,危险分配理论将寓于信赖原则之中加以展开。除了信赖原则之外,被害人的危险承受也是阻却医疗过失的重要事由,但是学界几乎没有学者对此进行探讨。基于此,本章围绕信赖原则与被害人的危险承受如何限制医疗过失的问题展开了较为深入的研究。 第一节在阐述了信赖原则在医疗过失中的适用条件的基础上,重点探讨了该原则在医疗过失中的适用问题。考虑到医师在医疗行为中的主导性地位,本文将信赖原则在医疗过失中的适用分成了三种情形进行探讨,即医师与患者之间,医师之间,以及医师与其他医疗人员之间。其中,第一种情形可以适用信赖原则,但其适用余地相对较小。第二种情形可以划分为水平的医疗分业关系和垂直的医疗分业关系,前一种关系可以适用信赖原则,而在后一种关系中,由于牵涉到监督过失的问题,因此信赖原则的适用会受到一定限制。关于第三种情形：(1)医师与护理人员之间能否适用信赖原则应视医疗行为的具体内容而定；(2)医师与药剂师之间,在存在医药分业的情况下可以适用信赖原则；(3)医师与检验人员之间原则上可以适用信赖原则。 第二节首先评析了被害人的危险承受阻却过失犯成立的各种理论根据,并表明了本文赞同的观点——被害人自我答责理论。在此基础上,本节探讨了危险的承受在医疗过失中的适用问题。具体而言,首先,阐明了危险的承受与患者同意之间的关系,并指出危险的承受能够阻却医疗过失的,仅限于医疗行为的对象承受不被允许的危险的场合。其次,探讨了医疗过失中适用危险的承受理论的一般性要件。最后,探讨了危险的承受在医疗过失中的具体适用情形,包括医疗过失中的基于合意的他人危殆化与自我危殆化的参与。
[Abstract]:At present, the medical disputes in China are growing rapidly and increasing, which has become the focus of the society at present. The tension between doctors and patients has become a common understanding, and the trust between doctors and patients has fallen to the bottom of the valley. Therefore, how to solve medical disputes reasonably and effectively in the pursuit of social harmony has become a social contradiction. There are many reasons for the surge of medical disputes at the present stage, among which the frequent occurrence of medical accidents is one of the main reasons, and a considerable proportion of medical accidents are caused by medical institutions and medical personnel violating medical rules and regulations. At present, the main way to solve medical malpractice disputes is medical treatment. The medical institution bears the civil liability for the compensation for medical damage, and investigates the administrative responsibility (such as the duty to suspend practice or revocation of the practice certificate, etc.), and the criminal responsibility is few. The direct manifestation is that in 1997, the crime of medical malpractice for the punishment of medical negligence is almost in practice. That is to say, it is too dependent on civil compensation, but neglecting the connection and coordination of civil, administrative and criminal liability, especially the criminal law can not play its due role in regulating medical negligence and preventing medical liability accidents. It is the present and problem point of the legal regulation of medical accidents in China, and it is also unable to carry out medical accidents. Effective prevention, thereby reducing the important causes of medical disputes.
At present, the criminal law can not play its due role in the regulation and prevention of medical liability accidents, and its reasons are various. Therefore, how to change this situation is not a problem that can be solved by criminal law alone. But it does not mean that a certain solution can not be found within the scope of the criminal law. From the angle of criminal law. The medical liability accident belongs to the category of business negligence crime. Therefore, the systematic and in-depth study of the core elements of medical negligence is of fundamental significance to the criminal law regulation of medical liability accident. However, the significance of the study of medical negligence from the angle of criminal law is not limited to the identification of the crime of medical accidents, and this research path leads to the lack of system and depth on the study of this problem in China. From a theoretical point of view, a more comprehensive, systematic and in-depth study is carried out around the essential elements of medical negligence, and other problems in the crime of medical malpractice, such as medical behavior and the legitimacy of its main body, causality, harmful results, and medical accident identification, are not involved, or only within the necessary limits.
Different from the research model adopted by most scholars in the mainland of China, this paper tries to make a more detailed study on this issue on the basis of the theoretical system of building criminal medical negligence, which includes four parts, such as the summary of medical negligence, the ontology of medical negligence, the conclusion of medical malpractice and the limitation of medical negligence. The full text is divided into five chapters, in addition to the first chapter introduction and conclusion, second to fifth chapters correspond to the four parts respectively.
The first part is the summary of medical negligence (second chapters). It is divided into two sections. Medical negligence is a fault in the course of "medical behavior". At the same time, the characteristics of medical behavior have an important influence on the identification of medical negligence. Therefore, the first section of this chapter first discusses the concept and characteristics of medical behavior. On this basis, medical behavior can be divided into two meanings according to the medical purpose or not. The medical behavior in this paper is generalized, but the medical behavior in the narrow sense is more universal and representative. Therefore, the theoretical discussion and case analysis below will be based on the narrow sense of medical behavior. After defining the concept of medical behavior, this section explores a series of features of medical behavior that have an important impact on the identification of medical negligence, which are: risk, usefulness, professionalism and uncertainty.
The second section of this chapter mainly discusses the concept and classification of medical negligence. First of all, this article holds that medical negligence should be defined as a violation of the necessary duty of care in the course of a specific medical behavior. The subject of the criminal negligence does not include the medical institution, and the medical personnel are contrary to the specific medical behavior process. The situation of anti related duty of attention can not be referred to as medical negligence. Secondly, on the classification of medical negligence, medical negligence can be classified from different angles. This section selects two kinds of classifications which have general directive significance to the criminal law regulation of medical negligence, which are simple technical The first classification is the cornerstone and starting point of the criminal medical negligence theory system, and the classification is also carried out in the analysis and demonstration of the related problems, that is, the criminal law should focus on the simple technical negligence, and the medical judgment negligence. The object of regulation of criminal law should be limited to those who are clearly separated from the medical standard.
The second part is the ontology of medical negligence (third chapters), which is divided into four sections. This part belongs to the basic theory and general theory of medical negligence. It is formed by abstracting and summarizing the specific medical negligence. Therefore, it has a general guiding significance for the specific identification of medical negligence.
Fundamentally, medical negligence belongs to a kind of negligence. Therefore, the basic position of the negligent crime theory will directly determine how to analyze and demonstrate the related problems of medical negligence and how to hold their views on these problems. Conclusion: the new theory of negligence is more reasonable in general and more suitable for the analysis of the related problems of medical negligence. Secondly, there is no opposition between the basic standpoint of the negligent crime in the mainland of China. After analysis, the basic position of our continent is more affinity with the new theory of negligence. Accordingly, this article from the act is priceless. Based on dualism, the position and viewpoint of the new theory of negligence are implemented in the full text.
The second section closely combines the characteristics of the medical field (medical behavior) and focuses on the content and basis of the duty of care of the medical personnel. In terms of the content of the duty of care, this section discusses the common result foreseeable obligation and the duty avoidance duty of the medical staff in various specific medical behavior, which embodies the medical negligence zone. Apart from the particularity of other faults, this section discusses the origin and basis of the duty of care which is closely related to the safety of specific medical behavior in terms of the basis of the duty of care.
The third section mainly discusses the ability to pay attention to the attention of the medical staff. This article holds that in the common fault, the criterion for judging the ability of attention should be taken in the middle, and in the business fault, especially in the medical negligence, it should be objectively said, that is, whether the result can be foreseen and avoided, which should be understood by the general medical staff at the time and the actor. In particular, the information is judged on the basis of which the general medical staff can foresee and avoid the result of the hazard. "General medical personnel" should be defined as a person who has the same or similar title or status in a region or a medical institution with the same or similar medical conditions. Medical professionals in the field of medical behavior.
The fourth section discusses the criteria for judging medical negligence. They are medical standards, discrepancy and urgency. Medical standards are the general criteria for judging medical negligence. However, the regional differences in medical standards should be fully considered. Discretion is the criterion for medical negligence, which is mainly applicable to medical judgment negligence. Look, discretion has the function of restricting medical negligence. As a standard of judging medical negligence, the role of urgency is to ease the duty of attention of medical personnel in emergency, and apply a lower standard of identification, but it is not exempt from the duty of attention.
The third part is the theory of the cognizance of medical negligence (fourth chapters), which is divided into five sections. The direct purpose of the study of medical negligence is to determine whether some kind of medical behavior violates the relevant duty of attention. Therefore, this part has more direct guiding significance for the judicial practice. Medical negligence is a fault in the process of medical behavior. Therefore, the identification of medical negligence must be combined with specific medical behavior. However, there are a wide variety of medical behavior, and with the development of medicine, its content is constantly being finely differentiated. Therefore, it is obviously unrealistic to explore the fault of all medical behaviors. Based on this, this chapter selects the diagnosis of medical accidents easily in practice. Behavior, injection behavior, transfusion behavior, anesthetic behavior and operation behavior are the object of investigation. After summarizing the negligence of these medical behaviors, the specific identification problems of these medical negligence are discussed in combination with specific cases. In particular, the first section of diagnostic fault generally includes the fault and diagnosis in the diagnosis process. Negligence in the second section. The injection negligence generally includes the necessity of injection and the negligence of timing, the types of injection and the negligence of the dose, the fault of the location and methods of the injection, the negligence of the injecting apparatus, and the observation fault after the injection. The third section of blood transfusion generally includes the collection of blood. The fault in the liquid process and the fault in the process of entering the blood. The fourth section of anesthetic negligence generally includes: the fault of judging the adaptability of the anesthetic, the negligence of the anesthetic and the method of anesthesia, the negligence of the technical operation in the anaesthesia, and the negligence of the patient after the anaesthesia. The surgical negligence in the fifth section generally includes the necessity of the operation. The judgment negligence of the feasibility, the fault of the timing of the operation, the negligence of the operation method, the negligence of the technical operation during the operation, and the negligence of the patient after the operation.
The fourth part is the theory of the limitation of medical negligence (the full text fifth chapters), which is divided into two sections. The above is a positive discussion on the establishment of medical negligence, and this part will study the hindrance of medical negligence from the opposite side. In theory, the theory of the permissible risk theory, the theory of dangerous distribution and the letter are generally considered to be the cause of the negligent offense. According to the permissible theory of danger, the medical staff's compliance with the medical rules and regulations and the treatment and nursing routines are the prerequisites and key elements for the application of the theory. However, when they abide by these regulations, they do not exist in violation of the objective duty of attention, or are not satisfied with the objective aspects of the constitution of the crime. That is to say, as the hindrance of the negligent crime, the permissible danger theory is not independent, so this chapter will not be discussed alone. On the theory of dangerous distribution, it is generally believed that the theory of trust is interrelated with the principle of trust. Therefore, the theory of dangerous distribution will be carried out in the principle of trust, except the principle of trust. In addition, the risk of the victim is also an important cause that hindered medical negligence, but there are almost no scholars in the academic community to discuss this. Based on this, this chapter carried out a more in-depth study on the trust principle and the risk of the victims to accept the problem of how to limit medical negligence.
The first section, on the basis of the application of the principle of trust in medical negligence, focuses on the application of this principle in medical negligence. Taking into account the leading position of the physician in medical behavior, the application of the principle of trust in medical negligence is divided into three cases, that is, doctors and patients.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D924.3
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本文编号：2150826
[Abstract]:At present, the medical disputes in China are growing rapidly and increasing, which has become the focus of the society at present. The tension between doctors and patients has become a common understanding, and the trust between doctors and patients has fallen to the bottom of the valley. Therefore, how to solve medical disputes reasonably and effectively in the pursuit of social harmony has become a social contradiction. There are many reasons for the surge of medical disputes at the present stage, among which the frequent occurrence of medical accidents is one of the main reasons, and a considerable proportion of medical accidents are caused by medical institutions and medical personnel violating medical rules and regulations. At present, the main way to solve medical malpractice disputes is medical treatment. The medical institution bears the civil liability for the compensation for medical damage, and investigates the administrative responsibility (such as the duty to suspend practice or revocation of the practice certificate, etc.), and the criminal responsibility is few. The direct manifestation is that in 1997, the crime of medical malpractice for the punishment of medical negligence is almost in practice. That is to say, it is too dependent on civil compensation, but neglecting the connection and coordination of civil, administrative and criminal liability, especially the criminal law can not play its due role in regulating medical negligence and preventing medical liability accidents. It is the present and problem point of the legal regulation of medical accidents in China, and it is also unable to carry out medical accidents. Effective prevention, thereby reducing the important causes of medical disputes.
At present, the criminal law can not play its due role in the regulation and prevention of medical liability accidents, and its reasons are various. Therefore, how to change this situation is not a problem that can be solved by criminal law alone. But it does not mean that a certain solution can not be found within the scope of the criminal law. From the angle of criminal law. The medical liability accident belongs to the category of business negligence crime. Therefore, the systematic and in-depth study of the core elements of medical negligence is of fundamental significance to the criminal law regulation of medical liability accident. However, the significance of the study of medical negligence from the angle of criminal law is not limited to the identification of the crime of medical accidents, and this research path leads to the lack of system and depth on the study of this problem in China. From a theoretical point of view, a more comprehensive, systematic and in-depth study is carried out around the essential elements of medical negligence, and other problems in the crime of medical malpractice, such as medical behavior and the legitimacy of its main body, causality, harmful results, and medical accident identification, are not involved, or only within the necessary limits.
Different from the research model adopted by most scholars in the mainland of China, this paper tries to make a more detailed study on this issue on the basis of the theoretical system of building criminal medical negligence, which includes four parts, such as the summary of medical negligence, the ontology of medical negligence, the conclusion of medical malpractice and the limitation of medical negligence. The full text is divided into five chapters, in addition to the first chapter introduction and conclusion, second to fifth chapters correspond to the four parts respectively.
The first part is the summary of medical negligence (second chapters). It is divided into two sections. Medical negligence is a fault in the course of "medical behavior". At the same time, the characteristics of medical behavior have an important influence on the identification of medical negligence. Therefore, the first section of this chapter first discusses the concept and characteristics of medical behavior. On this basis, medical behavior can be divided into two meanings according to the medical purpose or not. The medical behavior in this paper is generalized, but the medical behavior in the narrow sense is more universal and representative. Therefore, the theoretical discussion and case analysis below will be based on the narrow sense of medical behavior. After defining the concept of medical behavior, this section explores a series of features of medical behavior that have an important impact on the identification of medical negligence, which are: risk, usefulness, professionalism and uncertainty.
The second section of this chapter mainly discusses the concept and classification of medical negligence. First of all, this article holds that medical negligence should be defined as a violation of the necessary duty of care in the course of a specific medical behavior. The subject of the criminal negligence does not include the medical institution, and the medical personnel are contrary to the specific medical behavior process. The situation of anti related duty of attention can not be referred to as medical negligence. Secondly, on the classification of medical negligence, medical negligence can be classified from different angles. This section selects two kinds of classifications which have general directive significance to the criminal law regulation of medical negligence, which are simple technical The first classification is the cornerstone and starting point of the criminal medical negligence theory system, and the classification is also carried out in the analysis and demonstration of the related problems, that is, the criminal law should focus on the simple technical negligence, and the medical judgment negligence. The object of regulation of criminal law should be limited to those who are clearly separated from the medical standard.
The second part is the ontology of medical negligence (third chapters), which is divided into four sections. This part belongs to the basic theory and general theory of medical negligence. It is formed by abstracting and summarizing the specific medical negligence. Therefore, it has a general guiding significance for the specific identification of medical negligence.
Fundamentally, medical negligence belongs to a kind of negligence. Therefore, the basic position of the negligent crime theory will directly determine how to analyze and demonstrate the related problems of medical negligence and how to hold their views on these problems. Conclusion: the new theory of negligence is more reasonable in general and more suitable for the analysis of the related problems of medical negligence. Secondly, there is no opposition between the basic standpoint of the negligent crime in the mainland of China. After analysis, the basic position of our continent is more affinity with the new theory of negligence. Accordingly, this article from the act is priceless. Based on dualism, the position and viewpoint of the new theory of negligence are implemented in the full text.
The second section closely combines the characteristics of the medical field (medical behavior) and focuses on the content and basis of the duty of care of the medical personnel. In terms of the content of the duty of care, this section discusses the common result foreseeable obligation and the duty avoidance duty of the medical staff in various specific medical behavior, which embodies the medical negligence zone. Apart from the particularity of other faults, this section discusses the origin and basis of the duty of care which is closely related to the safety of specific medical behavior in terms of the basis of the duty of care.
The third section mainly discusses the ability to pay attention to the attention of the medical staff. This article holds that in the common fault, the criterion for judging the ability of attention should be taken in the middle, and in the business fault, especially in the medical negligence, it should be objectively said, that is, whether the result can be foreseen and avoided, which should be understood by the general medical staff at the time and the actor. In particular, the information is judged on the basis of which the general medical staff can foresee and avoid the result of the hazard. "General medical personnel" should be defined as a person who has the same or similar title or status in a region or a medical institution with the same or similar medical conditions. Medical professionals in the field of medical behavior.
The fourth section discusses the criteria for judging medical negligence. They are medical standards, discrepancy and urgency. Medical standards are the general criteria for judging medical negligence. However, the regional differences in medical standards should be fully considered. Discretion is the criterion for medical negligence, which is mainly applicable to medical judgment negligence. Look, discretion has the function of restricting medical negligence. As a standard of judging medical negligence, the role of urgency is to ease the duty of attention of medical personnel in emergency, and apply a lower standard of identification, but it is not exempt from the duty of attention.
The third part is the theory of the cognizance of medical negligence (fourth chapters), which is divided into five sections. The direct purpose of the study of medical negligence is to determine whether some kind of medical behavior violates the relevant duty of attention. Therefore, this part has more direct guiding significance for the judicial practice. Medical negligence is a fault in the process of medical behavior. Therefore, the identification of medical negligence must be combined with specific medical behavior. However, there are a wide variety of medical behavior, and with the development of medicine, its content is constantly being finely differentiated. Therefore, it is obviously unrealistic to explore the fault of all medical behaviors. Based on this, this chapter selects the diagnosis of medical accidents easily in practice. Behavior, injection behavior, transfusion behavior, anesthetic behavior and operation behavior are the object of investigation. After summarizing the negligence of these medical behaviors, the specific identification problems of these medical negligence are discussed in combination with specific cases. In particular, the first section of diagnostic fault generally includes the fault and diagnosis in the diagnosis process. Negligence in the second section. The injection negligence generally includes the necessity of injection and the negligence of timing, the types of injection and the negligence of the dose, the fault of the location and methods of the injection, the negligence of the injecting apparatus, and the observation fault after the injection. The third section of blood transfusion generally includes the collection of blood. The fault in the liquid process and the fault in the process of entering the blood. The fourth section of anesthetic negligence generally includes: the fault of judging the adaptability of the anesthetic, the negligence of the anesthetic and the method of anesthesia, the negligence of the technical operation in the anaesthesia, and the negligence of the patient after the anaesthesia. The surgical negligence in the fifth section generally includes the necessity of the operation. The judgment negligence of the feasibility, the fault of the timing of the operation, the negligence of the operation method, the negligence of the technical operation during the operation, and the negligence of the patient after the operation.
The fourth part is the theory of the limitation of medical negligence (the full text fifth chapters), which is divided into two sections. The above is a positive discussion on the establishment of medical negligence, and this part will study the hindrance of medical negligence from the opposite side. In theory, the theory of the permissible risk theory, the theory of dangerous distribution and the letter are generally considered to be the cause of the negligent offense. According to the permissible theory of danger, the medical staff's compliance with the medical rules and regulations and the treatment and nursing routines are the prerequisites and key elements for the application of the theory. However, when they abide by these regulations, they do not exist in violation of the objective duty of attention, or are not satisfied with the objective aspects of the constitution of the crime. That is to say, as the hindrance of the negligent crime, the permissible danger theory is not independent, so this chapter will not be discussed alone. On the theory of dangerous distribution, it is generally believed that the theory of trust is interrelated with the principle of trust. Therefore, the theory of dangerous distribution will be carried out in the principle of trust, except the principle of trust. In addition, the risk of the victim is also an important cause that hindered medical negligence, but there are almost no scholars in the academic community to discuss this. Based on this, this chapter carried out a more in-depth study on the trust principle and the risk of the victims to accept the problem of how to limit medical negligence.
The first section, on the basis of the application of the principle of trust in medical negligence, focuses on the application of this principle in medical negligence. Taking into account the leading position of the physician in medical behavior, the application of the principle of trust in medical negligence is divided into three cases, that is, doctors and patients.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D924.3
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本文编号：2150826
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