Identification Principle and Thought of “Medical Malpractice” Based on Theoretical Analysis

Abstract

At present, medical disputes are still widely-concerned social problems and occasionally evolve into severe social events. In the dispute settlement mechanism, forensic identification opinion is the important technical support. Due to the high professionalism and complexity of medicine, the identification of medical malpractice has become major and difficult problem in the identification. This paper systematically analyze the concept of medical malpractice and five legal theories of malpractice determination, pointing out that China’s forensic identification of medical damage should be led by the theory of “medical standards”, supplemented by “prudent patient” standard and strengthen “peer review” in form. At the same time, seven main identification principles should be followed in practice: （1） take “obligation of diagnosis and treatment” as the basic principle of medical malpractice identification; （2） take whether to fulfill the obligation of diagnosis and treatment corresponding to current medical level as the specific principle; （3） take diagnosis and treatment routine, norms and guidelines as the main basis; （4） the principle of “peer review”; （5） the principle of “the generality of medical emergency action”; （6） the principle of “notification-informed-consent”; （7） the principle of “review of complications”. This paper also puts forward the corresponding identification ideas in view of the above principles, hoping this helps standardize medical damage forensic identification activities.

Keywords

• forensic medicine
• medical malpractice
• forensic identification
• identification principle