基于我国医师法的医师紧急救治义务的刑法学思考

Penal Study on the Doctor’s Obligation of Emergency Treatment Based on the Law on Doctors of China

在医师违反紧急救治义务的司法判定上,刑事法相关原则和犯罪构成是必须考虑的问题。当前我国31省的医师拒绝急救的刑事案件数量少、以涉嫌过失犯罪为主、因果关系认定严格。在紧急专断医疗中,无法取得患者同意的紧急治疗是正当的,患者明确表示拒绝的紧急医疗则要分情况讨论。在紧急时,注意能力尽管低于非紧急之时,但仍需达到要求的程度,未达此程度施救造成患者伤亡的,是否可能承担刑事责任,要结合当时的医疗资源、患方意愿和医师良知进行判断。

In the judicial judgment of doctors violating emergency treatment obligations, the relevant principles of criminal law and the constitution of a crime must be considered. At present, the number of criminal cases of doctors in 31 provinces in China refusing first aid is small, and they are mainly suspected of negligent crimes, and the determination of causalities is strict. Emergency treatment that cannot be consented to by the patient is justified, while emergency treatment that the patient clearly refuses should be discussed on a case-by-case basis. In an emergency, although the attention capacity is lower than that in a non-emergency situation, it still needs to reach the required level. If the doctor fails to reach this level and causes injury or death to the patient, the possibility of criminal responsibility should be determined based on the medical resources at that time, the willingness of the patient and the doctor’s conscience.