Influence Of Medical Malpractice

Everyone is possible to get ill, thus is inevitable served by medical institutions. From the point of view of that it ought to be, the objective of patients should coincide with that of health workers, and the two should share common interests as well as trust in each other. However, the implementation of the bucket of healthcare reform in China pulled medical institutions into the free competitive market through the guideline of self-financing. As the result, the final goal of profit that hospitals pursue runs counter to the social commonweal nature of themselves, which generates lack of trust as well as the increasing number of disputes between sufferers and medical staff. The 1997 Criminal Law added the Medical Malpractice as a kind of crime to regulate medical behaviors of health-care workers and protect patients'rights. From the experience in the past fourteen years, we are able to find a large distance between the original goal of establishing the Medical Malpractice and the implementing of it in practice. Based on relevant Criminal Law Theory and the practice in China, the author summarizes basic theory of the Medical Malpractice, and analyzes controversial issues from a comparative perspective. Finally, some humble suggestions are put forward.This dissertation is divided into five chapters.The first one focuses on the historical origins of the Medical Malpractice. Some legislative characteristic of, both domestic and foreign, both past and present, the Medical Malpractice has been summed up. Comparing with the legislation model in China, which deems the malpractice as a kind of crime, the author concludes the general philosophy and concepts that consist of the framework of the Medical Malpractice System as a whole.The second part explores the constitutions of the crime. Firstly, the objects of the Medical Malpractice is complex, the main object of which is the right of human being's life and health, and the minor object is the medical order. Secondly, the author suggests cancelling the words of"fail seriously to carry out their responsibility", because the test of"fail seriously to carry out their responsibility"are based on subjective and objective standards, while the former is hard to judge and the latter shows as violating medical regulations. Therefore, the expression of"medical personnel who violate medical regulations"is more accurate. Thirdly, health workers should be the only subject of this crime, while the party and government management personnel as well administrative personnel do not consist of the subject because of the nature of their work. Besides, giving considerations of the system of punishment, the basis of which is individual criminal responsibility, and the effects of punishment in China, medical institutions should not be the subject either. Lastly, the nature of malpractice relies on the duty of care, the damage results of violating the duty of care by actors who possess the capability of care. Consequently, this paper mainly explores the duty of care and the capability of care.In the third chapter, assignment of criminal responsibility of the Medical Malpractice is discussed. As medical treatments of teamwork being the main trend of current society, the study of assignment of criminal responsibility among those who take part in medical activities has great realistic significance. This paper explores the theory of supervisory negligence of the supervisory personnel and the application of Dangerous Distribution Theory in medical activities.The forth part discusses issues concerning identifying of the Medical Malpractice and other existing problems in practice. The author first summarizes the medical accident appraisal system and procedure proposed by Chinese Medical Association, followed by analysis of its existing problems as well its affect imposed on the criminal justice. The crime and non-crime of the Medical Malpractice is then analyzed from a comparative perspective. Finally, the author explores reasons of low-application of this crime and provides some solutions.The fifth chapter centers on drawbacks of punishment system of the Medical Malpractice and some suggestions. The current prescribed punishment of this crime has two main problems: the narrow spectrum of punishment and few alternatives of penalty. This unscientific punishment system gives rise to either disproportional punishment or high economic and social cost when executing the disposed penalty. Therefore, improving the maximum prescribed punishment and introducing control punishment as well fine penalty at the same time is suggested.