论医疗过错的认定标准

Criteria for Judging Medical Malpractice

"医疗过错"是指在医疗活动中医疗机构和医务人员违反法律法规、诊疗护理常规和合理注意义务,未向患者提供按当时水平通常应提供的医疗服务的行为。关于医疗过错有多种学说,各国的实践也不一样,但对医疗过错的认定采用主客观相结合,以客观标准为主、辅以主观标准的做法更加适宜。客观标准表现为现行的法律法规及医学诊疗规范;主观标准则是医务人员的合理注意义务,其影响因素包括医务人员自身水平、诊疗的紧迫程度、医疗水准的地区差异和患者个体特征等。同时,对"合理注意义务"的界定也需要立法的进一步细化和完善。

＂Medical malpractice＂ refers to the acts that medical providers and medical personnel violate laws and regulations, routine diagnosis, treatment, and nursing modes, and duty of reasonable care and fail to provide patients the medical services that should generally be provided according to conditions at the time of treatment in their medical activities. There are many theories about medical malpractice, and practices vary among countries, however, it is more proper to eognize medical malpractice with the combination of objective and subjective analysis, and mainly by objective analysis with subjective analysis as its supplementation. Objective criteria refer to the current laws and regulations, medical diagnosis and treatment specifications; while objective criteria refer to medical personnel＇s duty of reasonable care, and its influencing factors consist of medical personnel＇s level, the urgent degree of the diagnosis and treatment, regional differences of health care level, and the patient＇s individual features, etc, Meanwhile, it needs further detailed and perfected legislation for determining ＂duty of reasonable care＂.