Medical Malpractice Constitute Characteristics And Statutory Sentence

Article 335 of criminal law of the people's republic of China reads as follows: "Any medical worker who, grossly neglecting his duty, causes death or severe harm to the health of the person seeking medical service shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention." This article is the first express provision of crime of medical accident in China. There are still many problems in the application and interpretation of this article. In this paper, the author has studied two main problems of the crime of medical accident.一, Study on constitution of crime of medical accident and draw conclusions as follows:1. Crime of medical accident has a double object: The primary one is the patient's right on life or health; the secondary is the normal order and managing activities of medical units;2. Objective requisites of crime of medical auident consists of three points: (1). There are grossly neglecting actions in medical worker's job; (2). The above grossly neglecting actions cause death or severe harm to the health of the person seeking medical service; (3). There is causality of crime between the above grossly neglecting actions and the above consequences of death and severe harm;3. Subject of crime of medical accident involves medical workers and any other person who works in medical unit and has responsibility to take specific action to safeguard patient's rights and benefits on life or health;4. Subjective of crime of medical accident is negligence, but not the formed design;二, The equipment of statutory punishment of crime of medicalaccident and it's improvement. By analysing the problems lying in this statutory punishment, the author has found that the ways of improvement involves: 1. Replenishing fine punishment; 2. Replenishing qualification punishment; 3. Raising the range of statatory punishment. Therefore, the author has suggested that the above article 335 should be revised as follows: "Any medical worker who, grossly neglecting his duty, causes death or severe harm to the health of the person seeking medical service shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined; if the circumstances are flagrant, he shall be sentenced to fixed-term imprisonment of not less than seven years but not more than ten years and shall also be fined; if the circumstances are minor, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined. And may be given a punishment of deprivation of qualification for medical worker.