中医诊疗注意义务刍议

Analysis about the duty of care in TCM treatment

注意义务是法学理论中的一项重要概念,是侵权法上过错判断的核心要素和评价标准。中医诊疗客观上存在理论基础与现代医学不一致、中医诊断带有主观性、辨证论治过程难以还原等基本特征。在中医诊疗活动中也存在有注意义务,其来源主要是法律、行政法规、规章、诊疗护理规范、医疗服务合同和先行行为。在一般注意义务上,主要包括:诊疗义务、医学文书制作和保管义务、告知义务;在特殊的注意义务上,主要包括:风险预防义务、保密义务和转诊义务。

The duty of care is an important concept in jurisprudence and is the core element and evaluation criterion of fault judgment in tort law. TCM diagnosis and treatment objectively has the basic characteristics such as the theoretical foundation and the inconsistency of modern medicine, the diagnosis of TCM with subjectivity, and the difficulty in the treatment of syndrome differentiation. In TCM diagnosis and treatment activities, there is also a duty of care, which is mainly derived from laws, administrative regulations, rules, treatment and care norms, medical service contracts and antecedent behaviors. The general duty of care mainly includes., medical treatment obligation, medical instrument production and custody obligation, disclosure obligation. The special duty of care mainly includes： risk prevention obligation, confidentiality obligation and referral obligation.