Judicial Standards For Determining Medical Negligence And Their Improvement

The number of medical damage liability cases in China’s judicial practice has been high,most of which involve the determination of medical negligence,and the criteria for determining medical negligence is the key.China’s Civil Code draws on Japan’s "level of medical care" theory and stipulates that "the level of medical care at the time" as the standard for determining medical negligence,but this standard is too abstract.In practice,judges still often use "medical treatment norms" and "medical routine" as the criteria for determining medical negligence,and these criteria actually deviate from the theory of "breach of duty of care" as the criterion for determining general civil negligence.These criteria actually deviate from the general theory of civil negligence based on the "breach of duty of care".Therefore,in order to clarify the meaning of the aforementioned criteria for determining medical negligence,it is the purpose of this paper to explore how to synthesize the various criteria to find a medical negligence standard that is not only in line with national conditions,but also justified and feasible.This paper focuses on the core of the "criteria for determining medical negligence".In the first part,the different standards applied by judges in three cases are used to illustrate the chaotic situation of the standards for determining medical negligence in judicial practice in China.The second part is an analysis of the doctrine of medical negligence,firstly defining the concept of general civil negligence,pointing out that general civil negligence has always been judged by the "objective duty of care of the actor",and then leading to the theoretical basis that medical negligence should also be judged by the "objective duty of care of the doctor"."However,due to the highly specialized nature of medicine,it is still difficult for judges to apply this standard in practice.The third part is a detailed analysis of the three standards for determining medical negligence that exist in Chinese practice,while drawing on practical and doctrinal developments in comparative law.Although the "standard of medical care" is the standard of adjudication under Chinese law,as its connotation has been enriched,it has become different from its original meaning and is almost equivalent to the concept of"duty of care" in general civil negligence,so its value on its own is questioned.The"medical practice" is only a general common medical practice,which cannot be regulated for specific cases.The fourth part of this article is based on the above-mentioned principles.The fourth part of this article provides additional suggestions for the determination of medical negligence in China on the basis of the foregoing.The paper argues that the determination of medical negligence should return to the general theory of negligence,i.e.,the "reasonable doctor’s duty of care" should be used as the standard for determining medical negligence,integrating the confusing criteria for determining medical negligence in practice with the basic theory of general negligence,and distinguishing medical negligence into decisional and operative negligence for specific determination.The "reasonable doctor standard" advocated in this article focuses on a comprehensive analysis of individual cases,with medical standards,treatment norms and medical routines being only one of the factors considered by judges.In addition,in order to help judges shape the standards of reasonable doctors in litigation,it is necessary to activate the system of "expert assistants" in China,which will help judges to determine medical negligence.