Definition of Medical Malpractice
Definition of Medical Malpractice, There are many causes of medical disputes, one of the most serious is medical malpractice. Medical malpractice, according to its cause, can be distinguished into medical liability accidents and medical technology accidents, the following is the definition of medical malpractice.
Definition of medical malpractice1The definition of medical malpractice arose from the Regulations on the Handling of Medical Accidents, which came into force in 2002, and refers to accidents in which a medical institution and its medical personnel, in the course of their medical activities, violate the medical and health care management laws, administrative regulations, departmental rules and diagnostic and treatment norms and routines, and negligence results in personal damage to the patient.
After the implementation of the Regulations on the Prevention and Handling of Medical Disputes on October 1, 2018, disputes between doctors and patients arising from diagnostic and therapeutic activities are uniformly defined as medical disputes, and medical accidents are limited to the scope of administrative investigation and treatment.
Legal basis
Article 2 of the Regulations on the Prevention and Handling of Medical Disputes
The medical dispute referred to in these regulations refers to the disputes between doctors and patients arising from diagnostic and treatment activities.
Article 55
The administrative investigation and handling of medical accidents in diagnosis and treatment activities shall be carried out in accordance with the relevant provisions of the Regulations on the Handling of Medical Accidents.
Article 2 of the Regulations on the Handling of Medical Accidents
Medical accidents as referred to in these regulations mean accidents in which medical institutions and their medical personnel violate medical and health management laws, administrative regulations, departmental rules and norms and routines of diagnosis and treatment and negligence in medical activities that result in personal damage to patients.
Definition of medical malpractice2Medical malpractice means: an accident in which a medical institution and its medical personnel, in the course of medical activities, violate medical and health care management laws, administrative regulations, departmental rules and diagnosis and treatment and care norms and routines, and negligently cause personal damage to a patient.
After the implementation of the Regulations on the Prevention and Handling of Medical Disputes on October 1, 2018, disputes between doctors and patients arising from diagnostic and therapeutic activities are uniformly defined as medical disputes, and medical accidents are limited to the scope of administrative investigations and treatments.
What is the difference between a medical malpractice and a medical dispute?
Medical malpractice, which covers medical malpractice, medical errors, medical accidents, complications and product quality, and natural regression of disease, is the main component. In many medical malpractice, the factor of personal damage to the patient in addition to some unforeseen medical risk factors, the negligence of medical personnel is still the main factor.
How to avoid these risk factors, the key is still in the medical staff. In the reality of the doctor-patient relationship, the patient due to the lack of medical knowledge, the treatment program is completely by the doctor unilaterally formulated and implemented, the patient is only in a passive position to accept, often just according to the requirements of the medical staff to cooperate with the examination and treatment, and sometimes even in a state of unconsciousness, coma.
Even the ability to cooperate with the ability are not, let the medical staff for medical treatment. Therefore, the responsibility of medical personnel in the medical process is very important, any slight negligence may lead to serious medical damage results, how to be responsible, to avoid negligence, the key lies in the obligation to pay attention.
In clinical medical work, whether it is surgery, drug therapy, medical behavior is essentially an invasive behavior, based on the protection of the patient's right to life and right to health, informed consent should be done. Informed consent consists of two levels: the first is "informed", that is, the patient and his family have the right to know the condition, the physician has the obligation to truthfully inform.
Informed should be understood in a broad sense, in addition to informing the patient's condition, but also should be informed of the current common treatment methods, and cutting-edge experimental, exploratory diagnostic and therapeutic methods, as well as the use of different therapeutic methods of efficacy prediction, complication prediction, a variety of treatments of the `cost prediction, and the physician's own experience, recommending the use of what kind of treatment program.
The second dimension of informed consent is `agreement'. Consent is an informed decision by the patient and his or her family to make appropriate decisions about the disease and its treatment. Only by obtaining the patient's consent can medical practice be legitimized and the liability of medical personnel in the event of medical harm be mitigated.
Medical malpractice compensation range
(a) medical expenses: medical malpractice to the patient caused by physical damage to the treatment of the medical expenses incurred, paid on the basis of evidence, but does not include the original disease medical expenses. After the closure of the case does require continued treatment, in accordance with the basic medical expenses.
(ii) lost wages: the patient has a fixed income, in accordance with the fixed income of the person due to lost wages reduced, the income is higher than the average annual salary of the employee on the ground of medical malpractice more than three times the average annual wage, according to three times the calculation; no fixed income, according to the average annual salary of the employee on the ground of medical malpractice calculation.
(C) hospital meal allowance: in accordance with the medical incident occurred in the place of the state organs of the general staff of the business trip meal allowance standard calculation.
(d) escort costs: the patient needs to be accompanied during hospitalization, in accordance with the average annual salary of employees on the ground of medical malpractice.
(e) disability living allowance: according to the disability level, calculated in accordance with the average annual cost of living of the residents of the place where the medical accident occurred, the maximum compensation of 30 years from the month of determination of disability; however, not more than 15 years for those aged 60 years old or above; not more than 5 years for those aged 70 years old or above.
(F) disability appliances: disability needs to be configured to compensate for the cost of functional appliances, with the proof of medical institutions, in accordance with the cost of universal appliances.
(vii) Funeral expenses: calculated in accordance with the funeral expense subsidy standard stipulated in the place where the medical incident occurred.
(viii) living expenses for dependents: to the extent of the deceased's life or the disabled before the loss of working capacity to actually support the person who is unable to work, in accordance with the minimum subsistence standards for residents of their domicile or place of residence. For those who are under 16 years of age, they shall be supported until they reach 16 years of age. On the age of 16 years old but incapable of labor, support 20 years; however, 60 years of age or older, not more than 15 years; 70 years of age or older, not more than 5 years.
(ix) transportation costs: calculated in accordance with the patient's actual necessary transportation costs, payable by voucher.
(j) Accommodation expenses: calculated in accordance with the standard of business trip accommodation allowance for general staff of state organs in the place where the medical malpractice occurs, and paid on the basis of supporting documents.
Definition of medical malpractice3
Medical malpractice refers to an accidental mutation or calamity caused by the fault of medical personnel in the course of medical activities. The result is the death, disability, tissue and organ damage or dysfunction of the patient. Generally speaking, medical malpractice is divided into medical technology accidents and medical liability accidents.
Medical technology accidents are accidents caused by the technical negligence of medical personnel. The cause of a medical malpractice is the low level of skill implemented by the medical staff, which may be due to the lack of solid technical skills of the medical staff.
It is also possible that the technical title of the medical staff does not correspond to its actual level, or that the unit where the medical staff is located lacks a particular technical equipment or that the technical equipment suddenly breaks down. But whatever the reason, the accident was due to technical reasons and had nothing to do with the responsibility of the medical staff.
Medical liability accidents refers to the medical staff to violate the rules and regulations, diagnosis and care routine and other negligence behavior caused by the accident. That is to say, in the process of diagnosis and treatment, due to the medical staff to violate the rules and regulations or diagnosis and treatment routines, resulting in the death of the patient, disability, tissue and organ damage resulting in dysfunction.
Emphasis is placed on the violation of rules and regulations, diagnostic and nursing routines, and the responsibility of medical staff is closely related. Such as the duty of the physician AWOL, out of the home, delayed patient rescue; nurses do not follow the provisions of the drug injection before checking, resulting in the wrong drug. These are the elements required by the responsibility of the accident.
According to the provisions of the Penal Code, only liability accidents can be held criminally responsible, technical accidents are not held criminally responsible. This can be found in the characteristics of the concept of crime.
First, the crime is an act that harms society, and the criminal act is socially harmful. Medical liability accidents are caused by the medical staff's lack of responsibility, this behavior, in the process of the medical staff's practice of medicine, at all times to the patient's life and health are a threat.
And the technical accident is the technical level of the medical staff, as long as the medical staff can learn from the lessons, and strive to study the business, more consult experienced medical staff, in the higher doctor's guidance to carry out the work, the disaster can be avoided.
Second, the crime is a violation of criminal law, that is, with criminal illegality. Only the violation of criminal law constitutes a crime, the violation of other laws and regulations, does not constitute a crime. Medical liability accidents are based on the violation of the relevant rules and regulations, diagnosis and treatment and care routines, and is closely related to the responsibility of medical personnel.
Article 335 of the Criminal Law expressly provides that such behavior constitutes a crime if it causes the death of the patient or serious damage to the physical health of the person attending the clinic. Therefore, violation of the relevant rules and regulations, diagnosis and treatment and care routines, and the lack of responsibility of medical staff, resulting in the consequences of the criminal law, is a criminal offense.
Third, the crime is punishable behavior, that is, punishable. According to the law, medical technology accidents are only subject to civil and administrative law adjustment, only civil and administrative responsibility, no need to assume criminal responsibility.
That is, medical malpractice, not all are criminally liable, the circumstances are significantly less serious, there are self-surrendered meritorious performance, or other circumstances, the People's Procuratorate can not be prosecuted to deal with.