| At present,the formulation of medical laws and regulations is mostly based on Western medicine.The number of TCM norms is small and the legal level is low.However,the uniqueness of TCM diagnosis and treatment thinking and means makes the standard of TCM fault identification very different from western medicine.Therefore,in the judicial practice of TCM diagnosis and treatment disputes,relevant laws and regulations should be interpreted and applied according to the characteristics of TCM.The identification of medical fault is one of the controversial focuses of diagnosis and treatment infringement cases.Articles 1221 and 1222 of the civil code respectively stipulate the basic identification standard of medical fault and the situation of fault presumption.They are also the legal provisions often cited in TCM diagnosis and treatment dispute cases.Understand article 1221 and 1222 of the civil code in combination with the unique thinking modes of TCM syndrome differentiation and treatment and overall concept Article 1222 is of great significance to the fault identification standard of traditional Chinese medicine.Firstly,there are great differences in the requirements of the duty of care between traditional Chinese medicine and Western medicine.Western medicine believes that the situation of violating the duty of care may not constitute the violation of the duty of care according to the thinking of traditional Chinese medicine;The rich experience of traditional Chinese medicine doctors in compatibility of medicines also makes them have higher requirements of duty of care in some diagnosis and treatment activities.For example,when toxic traditional Chinese medicine and even highly toxic drugs are applied in TCM diagnosis and treatment,as long as they are properly processed and compatible to meet the requirements of syndrome differentiation and treatment,they do not belong to the situation of violating the duty of care;The thinking of "comprehensive analysis of four examinations" and"different treatments for the same disease" in traditional Chinese medicine requires it to make a comprehensive judgment on the patient’s condition,disease trend and disease development process,and add or subtract prescriptions in time with the changes of "syndrome".There are natural deficiencies in the treatment of some diseases in traditional Chinese medicine,which also requires doctors to make a timely judgment and decide whether to switch to western medicine to avoid delaying treatment.Secondly,the application of the three presumption of fault in article 1222 of the civil code should also have different understanding and emphasis in the field of traditional Chinese medicine.The "diagnosis and treatment norms" of traditional Chinese medicine should be understood in a broad sense.Different types of diagnosis and treatment norms have different coercive forces and have different effects on fault identification.Due to the limitation of the division of registered specialties of doctors,when traditional Chinese medicine practitioners go beyond the scope of diagnosis and treatment and engage in practice activities in western medicine departments,they should not be recognized as beyond the scope of practice,nor do they belong to the case of presumption of fault.Chinese and Western medicine are limited by different laws and regulations in terms of the authority of prescribing.Traditional Chinese medicine prescribing western medicine beyond the restrictive conditions or western medicine prescribing traditional Chinese medicine beyond the restrictive conditions constitute a violation of laws and regulations,and fault presumption should be carried out.The characteristics and problems in the writing and preservation of TCM medical records also affect the application of paragraphs 2 and 3 of article 1222 of the civil code.In addition,in practice,the judicial expertise opinion of traditional Chinese medicine is an important basis for judges to identify faults,but many problems such as court abuse and blind compliance with the expertise opinion occur from time to time,which seriously affects the accuracy of fault identification of traditional Chinese medicine diagnosis and treatment,and is prone to different judgments in the same case.Therefore,we should make rational use of the judicial appraisal system of medical damage of traditional Chinese medicine,accurately understand the scope of appraisal and the status of appraisal opinions,reduce the influence of Western Medicine on judicial expertise of traditional Chinese Medicine,and solve the problem of responsibility distribution when appraisal cannot be carried out.Interpreting the relevant provisions of the civil code in combination with the characteristics of traditional Chinese medicine and giving full play to the role of medical identification of traditional Chinese medicine will help to make up for the professional knowledge gap between doctors and patients,help judges unify the fault identification standard in tort cases of traditional Chinese medicine diagnosis and treatment,build a medical fault identification system with the characteristics of traditional Chinese medicine and pave the legal road for the healthy development of traditional Chinese medicine. |
