Difference:
Medical malpractice refers to the medical institutions and their medical personnel in medical activities, in violation of medical and health care management laws, administrative regulations, departmental regulations and diagnostic and treatment care norms, routines, negligence caused by the patient's personal damage to the accident.
Constituting the crime of medical malpractice, the patient's personal injury must be the result of the serious irresponsibility of the medical staff and diagnosis and treatment of care have a necessary connection, that is, there is a criminal law causal relationship between the two.
Otherwise, even if the medical personnel have serious violations of the rules, but no such harmful results; or, although there are harmful results, and the medical personnel do not have serious violations of the rules, or although there are violations of the rules, but not serious, all do not constitute a crime.
To sum up, all the medical personnel due to serious irresponsibility, negligence caused by the harmful results of the major medical malpractice of the behavior constitutes a medical malpractice crime, otherwise only belong to the general medical malpractice.?
In addition, because China's criminal law does not medical institutions, i.e., in accordance with the provisions of the "Regulations on the Administration of Medical Institutions" to obtain the "medical institutions practice license" as a unit subject can constitute the crime of medical malpractice, therefore, when dealing with medical malpractice, can not be identified or punished as the medical institutions as the subject of medical malpractice crime.
If a medical institution commits an act of gross medical negligence, it can only be penalized administratively or financially in accordance with the relevant provisions of the "Regulations on the Administration of Medical Institutions" and the "Regulations on the Handling of Medical Accidents" and other laws and regulations.
Contact:
China's criminal law article 335 clearly stipulates that constitute the crime of medical malpractice, must be "medical personnel due to serious irresponsibility". Visible, to determine the medical personnel constitute the crime of medical malpractice, but also the existence of medical personnel seriously irresponsible behavior.
General opinion, the so-called serious irresponsibility, refers to the medical personnel in the diagnosis and treatment of nursing and other medical behavior in violation of medical rules and regulations and nursing routines, do not perform or incorrectly perform their due medical duties.
This is also consistent with the provisions of the Regulations on the Handling of Medical Accidents, Article 2 of the Regulations on the Handling of Medical Accidents stipulates that medical personnel in medical activities in violation of medical and health care management laws and regulations, administrative regulations, departmental rules, and diagnosis and treatment of care norms and routines is a prerequisite for the occurrence of medical accidents.
Medical personnel serious irresponsibility, including as and not as. The so-called action, as far as medical malpractice is concerned, refers to the medical personnel in the diagnosis and care work actively implement the medical regulations and rules and diagnosis and care routine prohibited behavior.
Inaction refers to the medical personnel in the treatment and care work should be in accordance with the laws and regulations and rules and regulations of the requirements of the treatment and care work, but without a justifiable reason did not perform their duties, so as to cause the harmful consequences of the behavior.
Expanded information:
When dealing with medical malpractice cases in judicial practice, the key to distinguish between Crime and non-crime boundaries. Specifically manifested in the distinction between the following boundaries.
1, medical malpractice and medical error boundaries
Medical error, refers to the diagnosis and care work, medical personnel, although there is a violation of the rules and regulations, diagnosis and care routines of dereliction of duty or technical negligence, but did not give the patient caused by the death, disability, tissue and organ damage resulting in dysfunction of the adverse consequences of the behavior.
Medical errors, differentiated from the cause, can be divided into medical liability errors and medical technology errors. Among them, the medical responsibility error and medical malpractice is easy to confuse, both are manifested in the medical staff in the diagnosis and treatment of irresponsible, violation of rules and regulations or diagnosis and treatment of routine behavior.
The difference lies in the different consequences. The former did not cause death, disability, tissue and organ damage resulting in dysfunction of the adverse consequences; the latter caused the death of the patient or serious damage to health. For medical personnel due to serious irresponsibility, resulting in medical errors, can not be punished for medical malpractice.
2, the boundaries of medical malpractice and medical accident
Medical accident, refers to the occurrence of unpredictable and preventive adverse consequences due to the condition or the patient's special physical condition. It and the crime of medical malpractice may occur in the death of the patient or the consequences of serious damage to health, the key to the difference between the two is the subjective negligence. If the death of the patient or serious damage to health, is due to the medical staff is not strong sense of responsibility, violation of rules and regulations or diagnostic and treatment routines, then constitute a medical malpractice.
If the above consequences are caused by factors that are difficult for the medical staff to anticipate or prevent, they are medical accidents and cannot be criminalized. Medical accidents and medical malpractice in the negligence of negligence is quite similar, both not only the occurrence of serious consequences, and the occurrence of serious consequences are not foreseen.
The difference between the two is that negligence should have foreseen the occurrence of serious consequences but did not, and medical accident is difficult to foresee the occurrence of serious consequences but did not foresee.
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