Article 61 of the Regulations on the Handling of Medical Accidents stipulates that the illegal practice of medicine causing personal injury to patients is not medical malpractice, and the compensation, the victim directly to the people's court.
1, what is the illegal practice of medicine
Illegal practice of medicine refers to the illegal practice of medical activities, specifically refers to the violation of the "Chinese People's Republic of China *** and the State Practitioners Law", "Chinese People's Republic of China *** and the State Maternal and Infant Health Care Law", "Regulations on the Administration of Medical Institutions" and other relevant health laws and regulations. As long as the perpetrator violates the provisions of these laws and regulations, the implementation of the medical behavior without legal qualification or license is illegal, naturally belongs to the illegal practice of medicine. In short, the illegal practice of medicine is to violate the medical laws and regulations of the license to engage in a medical illegal behavior. In the sense of health care laws and regulations, in addition to the unlicensed practice of medicine, medical institutions and individuals can become the organizers and implementers of illegal practice of medicine.
2, the relevant laws and regulations of the illegal practice of medicine
According to the "Regulations on the Administration of Medical Institutions", the illegal practice of medicine should include the following six aspects:
1) without obtaining the "medical practice license" unauthorized practice.
2) overdue calibration of the "medical institutions practice permit" is still engaged in diagnostic and therapeutic activities, or refused to calibrate.
3) selling, transferring, lending "medical institutions license".
4) Diagnostic activities beyond the scope of registration.
5) the use of non-health professionals to engage in medical and health technology.
6) Issuance of false documents.
According to the Law on Medical Practitioners, the illegal practice of medicine shall include the following 2 aspects:
1) opening a medical institution to practice medicine without authorization.
2) or practicing medicine by a non-physician.
According to the Maternal and Child Health Law without obtaining the relevant certificate of competency issued by the state, one of the following acts:
1) engaging in premarital medical examination, diagnosis of hereditary diseases, prenatal diagnosis, or medical technology appraisal;
2) carrying out surgery for termination of pregnancy;
3) issuing the relevant medical certificates stipulated in the Maternal and Child Health Law. Or issuing relevant false medical certificates or performing fetal sex identification.
3, non-profit medical institutions law on the illegal practice of medicine
1) rental medical institutions will be medical premises, invoices receipts, medical instruments, medical equipment, etc. rented to other organizations or individuals and in the name of the medical institution to carry out diagnostic and therapeutic activities, the medical institution to collect rent.
2) the department, etc. contracted to other organizations or individuals and in the name of the medical institution to carry out diagnostic and therapeutic activities, the medical institution to charge a fixed fee.
3) affiliation and use of the medical institution's prescriptions, receipts and medical documents to carry out diagnostic and therapeutic activities, the medical institution to collect management fees.
3) premises, equipment, personnel, receipts, prescriptions, medical documents and other tangible assets and intangible assets such as the name of the hospital as capital investment in joint ventures with other organizations or individuals to set up non-independent legal personality of the for-profit "outpatient", "center", "project", "center", "center", "center", "center", "center", "center", "center", "center", "center", "center" and "center". ", "center", "project", and in the name of the medical institution to carry out diagnostic and therapeutic activities, the medical institution to collect management fees or both parties to share the profits proportionately.
4) outsourcing and leasing of departments, joint ventures with other organizations and individuals to organize non-independent legal personality of the profit-making "department", "ward", "center", "project", "department", "ward", "center" and "project". The "project" and so on.
4, other illegal practice of medicine
1) without the approval of the Ministry of Health and the Ministry of Foreign Trade and Economic Cooperation, the establishment of Sino-foreign equity joint venture, cooperative medical institutions and medical activities or contractual management of diagnostic and therapeutic projects, as illegal practice of medicine;
2) foreign physicians to China for short-term practice of medicine without the location of the municipal level above the municipal health department to obtain the registration of the "short-term practice of foreign physicians license. License".
5, illegal practice of medicine caused personal injury legal responsibility
Illegal practice of medicine caused personal injury shall bear administrative responsibility, subject to the appropriate administrative penalties; violation of criminal law, shall bear criminal liability, the criminal law provides for the "crime of illegal practice of medicine"; the victim should also bear the civil liability for personal injury compensation.
6
6, the illegal practice of personal injury civil compensation for the application of the law
Illegal practice of personal injury compensation for the application of the "Interpretation of a number of issues on the application of law in the trial of cases of personal injury compensation," the standard of compensation.
For the legal medical institutions illegal practice of personal injury civil compensation around the legal application of the problem of inconsistency, there is a view that the unit is legal, illegal practice of medicine is a medical malpractice violation of the constitutive elements of the problem, should be applied to the "Regulations on the Treatment of Medical Accidents", through the technical appraisal of medical accidents are dealt with, which avoids the possibility of high compensation for medical institutions. Another view is that the legal medical institutions illegal practice of medicine so that the medical institutions become medical malpractice of the ineligible subject, its civil compensation does not apply to the provisions of the "Regulations on Medical Malpractice", but should be applied to the provisions of the Judicial Interpretation of Personal Injury Compensation.
7, illegal practice of personal injury appraisal
"Interim Measures for Technical Appraisal of Medical Accidents" Article 13 (5) provides that the illegal practice of medicine caused by the patient's physical health damage, the medical association will not be accepted for appraisal. In the litigation process, such as the need for identification by the court commissioned by the forensic identification agency to carry out. The difference between forensic identification and medical association identification is that the former does not focus on the involvement of the disease itself, while the latter emphasizes the involvement of the disease itself. From the identification point of view, once recognized as illegal practice of medicine, the damage caused by the patient's eventual compensation is very favorable.