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Dissertations / Theses on the topic 'Medical negligence'
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1
Daly, Brenda Marie. "Legal accountability and medical negligence cases." Thesis, University of Ulster, 2005. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.422196.
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Phillips, Andrew Fulton. "Medical liability and the law of negligence." Thesis, University of Edinburgh, 1992. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.508237.
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The first aim of the thesis is to set out and analyse critically the main principles of the (common) law of medical negligence. An overview of the bases of liability and their development is given as a precursor to this. The second aim of the thesis is to put forward the writer's proposals for reform, which, it is submitted, would ameliorate the unsatisfactory aspects of the present approach. The topics selected for consideration are principally the duty and standard of care, causation and the justification for the fault principle, including underlying aims where appropriate. Analysis of these yields the result that the present law is not satisfactory, in that its aims are insufficiently achieved. The most important of the aims which are identified and discussed comprise compensation, deterrence and accountability. Although many suggest that the deterrent aim is now obsolete, the writer argues that it is inconsistent and haphazard in its application to medical negligence. However, as a goal, it should be retained albeit interpreted more broadly than hitherto. Alternative approaches such as no-fault compensation are also discussed. In putting forward his proposals for reform, the writer argues that attempting to meet these underlying aims by the combined mechanism of the action for damages is unsatisfactory, and that they are best met by provision for separate mechanisms in respect of the fundamental avenues of compensation and deterrence/accountability. In essence, social security provides a vehicle for distributing the former (assessment being separate), and the writer's suggested approach of an enhanced, non-adversarial medical audit and reporting systems as a vehicle for the latter.
3
Perera, Avanti Olenka. "Medical negligence claims in Sri Lanka : a dispute perspective." Thesis, University of Oxford, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.550551.
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Medical negligence claims are social episodes which are caught in the midst of dispute journeys and involve their participants' understandings of, explanations of, and responses to healthcare service standards. However, the manner in which concerns with healthcare services emerge through such claims is complex. This is because the disputing process is dynamic and variables encountered during that process determine the nature and scope of what aspects of those claims become visible, as well as transform the focus of what is visible, from time to time. Accordingly, by adopting a dispute-centered analytical framework and situated within a particular socio-legal microcosm, namely Sri Lanka, this study questions and investigates the extent to which medical negligence claims in Sri Lanka reflect concerns with healthcare service standards. The investigation dissects the dispute variables within medical negligence claims journeys: parties, grievance emergence, the substance of grievances, grievance management strategies, claimant goals, claims forums, claiming capacity, claims processing and claims outcomes. However, the findings return attention to what we can learn about healthcare service issues from those claims. The research contribution of the study is three-fold: it expands the analytical approach in medical negligence claims research by applying dispute theories, widens the thematic concerns of such claims by relating them to healthcare service standards in a more sceptical manner, and extends the focus of medical negligence literature by exploring a relatively ignored research site, a non-Western jurisdiction. It is hoped that the findings here will also inform policy. That is, by making it easier to identify what medical negligence claims are about and, consequently, using that information to improve quality of care, as well as grievance management systems, in Sri Lanka and other similarly placed socio-legal contexts.
4
Chapple, Bronwyn. "Breast cancer screening and medical negligence : 'waiting for something to happen'." Title page, contents and abstract only, 2000. http://web4.library.adelaide.edu.au/theses/09MPM/09mpmc467.pdf.
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Ding, Chunyan. "Medical negligence law in transitional China a patient in need of a cure /." Click to view the E-thesis via HKUTO, 2009. http://sunzi.lib.hku.hk/hkuto/record/B43913696.
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Purshouse, Craig Jonathan. "Should lost autonomy be recognised as actionable damage in medical negligence cases?" Thesis, University of Manchester, 2016. https://www.research.manchester.ac.uk/portal/en/theses/should-lost-autonomy-be-recognised-as-actionable-damage-in-medical-negligence-cases(5f9558e6-bf61-4e91-8d3f-7c2e16a368bd).html.
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It has been suggested by some commentators that the ‘real’ damage (as opposed to that pleaded) in the cases of Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and Chester v Afshar [2005] 1 AC 134 was the claimant’s lost autonomy. Arguments have consequently been put forward that lost autonomy either already is or should be recognised as a new form of actionable damage in medical negligence cases. Given the value placed on respecting patient autonomy in medical law and bioethics, it might be thought that such a development should be welcomed. But if lost autonomy is accepted as a new form of damage in negligence, it will not be confined to the two scenarios that were present in those cases and it may be inconsistent with other established negligence principles. This thesis considers whether lost autonomy ought to be recognised as a new form of damage in negligence and concludes that it should not. A close textual analysis of Rees and Chester is undertaken in order to determine whether a ‘lost autonomy’ analysis actually provides the best explanation of those two cases. I then look at how the concepts of autonomy and harm should be understood to determine whether, ethically speaking, to interfere with someone’s autonomy is to cause them harm. The final part of the thesis considers important doctrinal tort law considerations that have been overlooked in the medical law literature. I argue that the nature of autonomy means that it cannot coherently be considered actionable damage within the tort of negligence and that recognising a duty of care to avoid interfering with people’s autonomy would be inconsistent with the restrictive approach the courts take to recovery for psychiatric injury and economic loss. My ultimate conclusion is that the benefits of allowing such claims do not outweigh the undermining of established principles that would ensue if lost autonomy were recognised as a form of actionable damage in negligence.
7
Ding, Chunyan, and 丁春艳. "Medical negligence law in transitional China: a patient in need of a cure." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2009. http://hub.hku.hk/bib/B43913696.
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Pienaar, Catherina Elixabeth. "The incommensurability of the archaic perceptions of the maxim res ipsa loquitur in medical negligence litigation." Doctoral thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/24513.
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This thesis assesses the legal doctrine res ipsa loquitur ('the thing speaks for itself) in the context of delictual claims for compensation for medical negligence in South African law. The thesis accepts that the doctrine is defensible in principle: a civil court may justifiably draw an inference that a defendant's negligent conduct was a factual cause of the harm suffered in simple cases where there is uncontradicted evidence sufficient to establish a prima facie case. However, it is argued that the South Africa Appellate Division's rejection of the doctrine in the context of medical negligence in 1924 remains justified. It is sometimes thought that the doctrine would assist plaintiffs in complex medical cases by easing the difficulty of establishing a cause of action on a balance of probabilities. However, the thesis argues to the contrary that applying the doctrine in the context of medical negligence claims in South Africa is potentially unjust to claimants and defendants alike. Judgments of medical negligence cannot be made soundly without a proper appreciation of the relevant medical facts. The availability of the doctrine, in the South African context, provides a motivation for plaintiffs to advance insufficiently-prepared evidence, sometimes without the views of experts. This results in the oversimplification of complex medical realities, which increases the risk that courts may reach conclusions regarding negligence and factual causation for reasons that are unjustifiable from a medical perspective. Insufficiently-prepared evidence is also vulnerable to rebuttal by defendant-doctors on 'exotic' or inadequate grounds from a medical perspective, resulting in the unjust rejection of negligence claims. By enabling a superficial approach to deciding questions of medical negligence in the South African context, the doctrine may promote the erroneous assumption that bad medical outcomes typically result from medical wrongdoing. To make its case, the thesis draws on case studies of a variety of medical procedures and contrasts the operation of res ipsa loquitur in South Africa against English legal experience. Differences between the two systems of medical negligence cast doubt on the notion that the English approach should be transplanted to South Africa. Rather than relying on the res ipsa loquitur doctrine to bolster claims made without medical expert evidence, the South African plaintiff should instead rely on constitutional arguments, appealing to basic rights to bodily integrity and dignity, to justify the injection of a degree of flexibility into the common-law elements of a delictual claim.
9
Merkel, Dany. "Congenital disability, medical negligence and wrongful life actions, the limits of liability in Anglo-American tort law." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1999. http://www.collectionscanada.ca/obj/s4/f2/dsk1/tape9/PQDD_0003/MQ46035.pdf.
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Kotze, salmon Ruan. "Contemporary perspectives on factual causation in the South African Law of Delict : a study with reference to medical negligence." Diss., University of Pretoria, 2015. http://hdl.handle.net/2263/53139.
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This purpose of this dissertation is to determine the ambit of the current requirements
for the proof of factual causation in the South African law of delict, and to consider
the implications thereof with reference to medical negligence. Proceeding from the
premise that South African courts have employed the conditio sine qua non as the
sole test for factual causation for at least the past forty years, this study commences
with a review of selected older South African case law which evidences judicial
recognition of alternative, less stringent tests for factual causation. It is concluded that
South African courts have in the past employed versions of the material contribution
test as well as hybrid tests in assessing factual causation to the benefit of plaintiffs
who had proven negligence and injury, but were confronted with difficulty or
impossibility in the proof of causation. The South African case law selection is
concluded with the Constitutional Court s judgment in Lee v Minister of Correctional
Services 2013 (2) SA 144 which, it will be argued, represents a significant departure
from the prior common law position regarding factual causation. In an attempt to gain
some perspective on what the said departure from the traditional test for factual
causation might entail and what repercussions it may have, a study is made of selected
case law from the United Kingdom pertaining to the application of modified tests for
factual causation. It is concluded that the Constitutional Court in fact employed a
material contribution to risk test for factual causation in Lee v Minister of
Correctional Services 2013 (2) SA 144 and the reception of this judgment is
considered in the light of academic commentary and perspectives gleaned from the
United Kingdom. The discussion culminates in an opinion that the current common
law position regarding the test for factual causation has not been defined clearly by
the courts although it has certainly been relaxed into a less stringent formulation. The
prevailing position is considered with reference to the Constitution and the possible
reliance by organs of state on section 36 thereof is contemplated as a possible
mechanism to resist positive findings of causation. Finally it is submitted that the
contemporary formulation of the test for factual causation represents perhaps the most
plaintiff-friendly delictual disposition in South African legal history, with the result
that medical negligence is likely to be proved with greater ease in future.Dissertation (LLM)--University of Pretoria, 2015.
Public Law
LLM
Unrestricted
11
Chamisa, Dennis. "The potential of alternative dispute resolution mechanisms in tackling the increase of lawsuits due to medical negligence in public hospitals." Master's thesis, University of Cape Town, 2013. http://hdl.handle.net/11427/4587.
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Gioia, Daniella Elsa. "A proposed protocol of medical negligence on-board International Common Carrier Flights in the context of international law treaties and/or Instruments." Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/60047.
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To determine to whom liability will attach when an act of medical negligence were to occur onboard
an international Common Carrier airflight ?
? The airline for not providing / creating adequate conditions for medical assistance /
healthcare;
? The medical practitioner, as a good Samaritan, for providing substandard care, albeit in
less than ideal surroundings;
? The medical insurer, based on an ethical duty to indemnify / cover its doctors?
The main focus of the study will therefore be to clarify whether either the airline itself or the doctor
in their personal capacity providing assistance, could be held liable, alternatively jointly liable, in the
event of a procedure being performed on?board a commercial carrier which procedure then does
not go according to plan. Any refusal by a medical practitioner to treat a passenger in distress, albeit
for a sound reason, would certainly pose an ethical dilemma to the practitioner on board.
In this critical analysis of medical negligence in the context of international law, specifically
pertaining to long?distance international airline flights, the focus shall fall on the liability of any
medically negligent act as well as the duty of care and such standard of care provided in accordance
with such duty.
It will further be to determine whether the passengers? Constitutional right to healthcare in terms of
section 27 of the Constitution ?trumps? all other rights, including the medical practitioners? right to
refusal to provide medical treatment?Mini Dissertation (MPhil)--University of Pretoria, 2017.
Public Law
MPhil
Unrestricted
13
Al-Qasem, Ruby. ""Resurrection Attempts: Essays"." Thesis, University of North Texas, 2020. https://digital.library.unt.edu/ark:/67531/metadc1703401/.
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This dissertation is composed of a critical preface, "Reconciling Art and Account in the Creative Essay," and the essay collection Resurrection Attempts: Essays. The preface situates the following essay collection within the genre of contemporary creative nonfiction. Specifically, it argues that genre-bending or genre hybridity are inherent and unavoidable features of creative nonfiction writing and should be celebrated, rather than denied or lamented. It points to other writers who deliberately challenge the bounds of genre, and discusses some of the collection's innovations in form and other ways it offers experimentation, such as use of unusual or borrowed points of view, disruption of chronology, and adoption of elements from other genres of writing, including fiction, poetry, and academic. Ultimately, embracing the artistic side of creative nonfiction (as opposed to its "purely" journalistic side) allows for heightened intimacy with the reader, a much wider breadth of storytelling, and a more vulnerable—and therefore more truthful—interrogation of legacy and the human experience. Resurrection Attempts is a collection of essays exploring the writer's rural Texas childhood and the early and tragic losses of her parents, including the effect of those experiences on her adult life and performance of motherhood. The voices of the writer's sisters sometimes intertwine with hers, especially as she examines the converging and diverging lenses of their shared experience. She works throughout to "resurrect" her parents and even to resurrect earlier versions of other family members, including herself. The collection is particularly fascinated with dreams, drawing a parallel between the subconscious lives of the dreamer and their waking constructions of their memories and experiences.
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Laurinaitytė, Jurgita. ""Egzistencinės žalos" atlyginimas, kaip naujausia teisės problema biomedicinos srityje." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2008. http://vddb.library.lt/obj/LT-eLABa-0001:E.02~2007~D_20080128_113132-66019.
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Biotechnologijų vystymasis medicinai buvo didelis žingsnis į priekį, ir viena iš priežasčių kodėl atsirado egzistencinės žalos atlyginimo ieškiniai dėl neteisėto gimimo ir neteisėto gyvenimo. Neteisėto gimimo atveju tėvai siekia kompensacijos dėl nenorimo ar neplanuoto vaiko gimimo, neteisėto gyvenimo – neįgalus vaikas siekia kompensacijos už tai, kad jis toks gimė. Tokie ieškiniai yra ginčytini, kadangi jie suponuoja tokiomis teisėmis kaip teisė negimti, nėra kriterijų kuriais remiantis būtų galima pateikti neteisėto gimimo ar neteisėto gyvenimo ieškinį bei apskaičiuoti egzistencinę žalą. Todėl įrodyti tokią žalą yra pakankamai sunku. Darbe buvo apžvelgtas žalos atlyginimo Lietuvoje institutas, ypatingą dėmesį skiriant neturtinės žalos atlyginimui, ir nustatyta, kad esama tvarka nėra liberali, todėl galimybė pateikti tokį ieškinį Lietuvoje ir gauti kompensaciją lygi nuliui.Development of technologies has been a giant step forward for medicine and one of reasons, why suits of recovery of „existential damage” because of the wrongful birth or wrongful life arose. In claims for wrongful birth parents are seek compensation for the birth of unplanned or unwanted child and in claims for wrongful life – disabled child is seek compensation for the fact, that he is born disabled. Such suits are controversial, because they deal with such rights like right not to be born. There are no criterions for the recovery of “existential damage” under which it would be possible to bring an action of this damage, because of wrongful birth and wrongful life. It is rather difficult to prove “existential damage”. This article deals with the institute of recovery of damage, giving the biggest attention to recovery of moral damage. It was ascertained, that present order is not liberal, and to suit in Lithuania and to get award there is no any possibility.
15
Elzbergas, Tadas. "Pacientų teisių gynimo galimybės ir ribos nacionaliniame ir tarptautiniame lygmenyse." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2006. http://vddb.library.lt/obj/LT-eLABa-0001:E.02~2006~D_20060314_103422-40016.
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The author in his essay lays down pretreal and judicial opportunities of protection of patient‘s rights. For comparison there are analysed Lithuanian and British systems of protection of patient‘s rights. Patients suffer certain dificulties inherent only for this category of cases. Only a small number of patients have opportunity to embrace their rights in international level. Patients migrating wthin European Union have opportunity to apply to the Court of Justice of European Communities.
16
Fuhlrott, Michael. "Der geschädigte Arbeitnehmer : zur Verfassungsmässigkeit des Ausschlusses von Schmerzensgeld in der Unfallversicherung sowie zur Herleitung der Haftung bei Eigenschäden im Hinblick auf das Verschuldensprinzip /." Frankfurt am Main ; New York : P. Lang, 2006. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=014923379&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Fuchs, Martina. "Die Haftung des Familienhaupts nach Art. 333 Abs. 1 ZGB im veränderten sozialen Kontext /." Zürich ; Basel Genf : Schulthess, 2007. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=016984486&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Willemyns, Amanda Jo-Anne. "Under the carpet : the politics and trauma of patient harm." Thesis, Queensland University of Technology, 2010. https://eprints.qut.edu.au/46266/1/Amanda_Willemyns_Thesis.pdf.
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Few studies have investigated iatrogenic outcomes from the viewpoint of patient experience. To address this anomaly, the broad aim of this research is to explore the lived experience of patient harm. Patient harm is defined as major harm to the patient, either psychosocial or physical in nature, resulting from any aspect of health care. Utilising the method of Consensual Qualitative Research (CQR), in-depth interviews are conducted with twenty-four volunteer research participants who self-report having been severely harmed by an invasive medical procedure. A standardised measure of emotional distress, the Impact of Event Scale (IES), is additionally employed for purposes of triangulation. Thematic analysis of transcript data indicate numerous findings including: (i) difficulties regarding patients‘ prior understanding of risks involved with their medical procedure; (ii) the problematic response of the health system post-procedure; (iii) multiple adverse effects upon life functioning; (iv) limited recourse options for patients; and (v) the approach desired in terms of how patient harm should be systemically handled. In addition, IES results indicate a clinically significant level of distress in the sample as a whole.
To discuss findings, a cross-disciplinary approach is adopted that draws upon sociology, medicine, medical anthropology, psychology, philosophy, history, ethics, law, and political theory. Furthermore, an overall explanatory framework is proposed in terms of the master themes of power and trauma. In terms of the theme of power, a postmodernist analysis explores the politics of patient harm, particularly the dynamics surrounding the politics of knowledge (e.g., notions of subjective versus objective knowledge, informed consent, and open disclosure). This analysis suggests that patient care is not the prime function of the health system, which appears more focussed upon serving the interests of those in the upper levels of its hierarchy.
In terms of the master theme of trauma, current understandings of posttraumatic stress disorder (PTSD) are critiqued, and based on data from this research as well as the international literature, a new model of trauma is proposed. This model is based upon the principle of homeostasis observed in biology, whereby within every cell or organism a state of equilibrium is sought and maintained. The proposed model identifies several bio-psychosocial markers of trauma across its three main phases. These trauma markers include: (i) a profound sense of loss; (ii) a lack of perceived control; (iii) passive trauma processing responses; (iv) an identity crisis; (v) a quest to fully understand the trauma event; (vi) a need for social validation of the traumatic experience; and (vii) posttraumatic adaption with the possibility of positive change.
To further explore the master themes of power and trauma, a natural group interview is carried out at a meeting of a patient support group for arachnoiditis. Observations at this meeting and members‘ stories in general support the homeostatic model of trauma, particularly the quest to find answers in the face of distressing experience, as well as the need for social recognition of that experience. In addition, the sociopolitical response to arachnoiditis highlights how public domains of knowledge are largely constructed and controlled by vested interests. Implications of the data overall are discussed in terms of a cultural revolution being needed in health care to position core values around a prime focus upon patients as human beings.
19
Cheng, Shu-Ping, and 鄭淑屏. "Types of medical negligence and evidence-judging in medical negligence cases." Thesis, 1996. http://ndltd.ncl.edu.tw/handle/22912491654392335449.
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TSENG, SHU-YU, and 曾淑瑜. "Medical Negligence and Causation." Thesis, 1997. http://ndltd.ncl.edu.tw/handle/07534524674469438917.
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Wang, Tzu-Ling, and 王梓齡. "Injury Compensation in Medical Negligence." Thesis, 2012. http://ndltd.ncl.edu.tw/handle/93204269247449415199.
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碩士國立雲林科技大學
科技法律研究所碩士班
100
The main purpose of this article is to discuss the Injury Compensation in Medical Negligence and to find out the reason why medical dispute fails to settle peacefully. Also, further discussion through analyzing the civil law obligations and relevent protocol is to be made, but is still lack of its actual effect and feasibility. The rationality of injury compensation in medical negligence will be discussed. Some reasonable amendments and constructive aspects will be pinpointed out. The first chapter in this article states the purposes, motivations, research methods and research structures. The second chapter will define the “medical negligence” and “injury compensation” with theories. In the third chapter, the civil law responsibility will be prosecuted through the medical negligence definition procedure. In the fourth chapter, discussions over current compensation patterns and protocols will be made. Review on indemnification to see if it is reasonable in comparison with the compensation methods and ranges of China and the United States. In Chapter five, the discussion over the medical conflicts triggered by medical negligence and the inquire into medical conflict processing and the critique of the repair regulation drafted plan and the relation of the indemnity. And if it can reach to quickly and carefully solution of the purpose of medical dispute. In the end , in the conclusion of chapter 6, tallies up the analysis of the above-mentioned chapters, the domestic medical dispute related system plans of trend, put forth to build up or come up with the suggestions for reforming.
22
Chia-ChiChang and 張嘉琪. "On Medical Negligence in Civil Liability." Thesis, 2018. http://ndltd.ncl.edu.tw/handle/qqy8jp.
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碩士國立成功大學
法律學系
106
SUMMARY Due to the high professionalism and high level of knowledge in the field of medical malpractice litigation, courts are often lost in the fog of whether defendants breach their duty of care and are therefore highly dependent on medical assessments. The standard of duty of care, the duty of care of the so-called reasonable man, is too abstract and difficult to apply as a general guideline to a medical conduct of undetermined risk. Based on the theory of negligence, this article explores how medical malpractice can be identified. What are the standards? What are the status of medical assessments in practice and the analysis of relevant judgments over the years, what is the importance of medical custom in practice? What role does it play and then affect the court? Observing the interaction between the medical and the legal system, the reason why the medical customs in the court evaluates the responsibility of the physician, and finally the exception to the standard of the duty of care is discussed. INTRODUCTION In this thesis, medical malpractice centers on the breach of duty of care, introduces the standard of duty of care extended by each theory, and then explores the connotation of applicable standard of care. The first chapter of this article is introduction; the second chapter establishes the meaning of the duty to pay attention to the reasonable man of civil law; the third chapter to the fourth chapter discusses the definition and standard of medical malpractice. The emphasis is on the important concepts of medical customs, and that use it as a reason for standard of care. This part wants to explain the influence and importance of medical customs by a large number of court judgments and the relation of assessments. The fifth chapter abstracts the principle and exception of Court's cognizance of medical malpractice referred to in chapter four. Conclusions will sort out the doctrine and practical operation, put forward the opinions and suggestions of this article, and finally propose the the standard of duty of care in medical malpractice in civil law in this article. MATERIALS AND METHODS This article needs a large and extensive analysis of court judgments, journal articles, theses, to summarize some important concepts, the evolution of scholars' doctrine and put forward the opinion of this article, so the use of literature analysis method; and the collection of domestic medical litigation judgments as well as assessments, using case analysis method; In addition, the concepts of duty of care, medical level and medical customs have long-term development in other countries. Using foreign law as a reference to make up for the shortcomings in our country, so this article applies the comparative analysis method. CONCLUSION The determination of civil negligence has always been based on the principle of reasonable man. However, how to determine the responsibility of the doctor in the medical malpractice litigation is the primary objective of this article. Medical malpractice has to be considered on the nature of the occupational characteristics and the nature of the incident. And medical liability is a behavioral responsibility and does not guarantee the outcome of the cure. Therefore, in order to avoid hindsight and restrict the development of medical science, the standard of obligation of care needs to be reviewed again. In this regard, the recommendations made in this article for medical malpractice litigation are as follows: (1) Explanation extent that courts provide for the standard of care should be raised. (2) Strengthen the court's understanding of the medical customs, to avoid the uncertainty of standard of care. (3) Improve the communication with the appraisal organ, strengthen the civil issue coordination, and pay attention to the integrity of the basic evidence information. Finally, this article proposes that courts may be allowed to exclude medical customs as the sole criterion for judgments and to avoid unfairness under certain circumstances. In fact, these cases are meant to respect the professionalism of medical conduct, protect the interests of patients and avoid any hindrance to medical progress.
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CHANG, YI-CHUNG, and 張奕中. "Causation and Objective Inevitability in Medical Negligence." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/24486462591129514592.
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碩士銘傳大學
法律學系碩士在職專班
105
Due to patient’s self-determination、National health insurance and changes in the relationship between illness and disease, medical dispute case increased rapidly. Increase of medical defense and loss of intensive care physician means degeneration of medical level. Patient also loss opportunities of active treatments. The use of criminal proceedings usually seen in dispute case to reach a civic request or claim. However, it don’t reach patient’s request and only increase judicial case and medical defense. Medical behavior is risk-averse altruistic behavior. It is mainly divided into two parts: diagnosis and treatments. Medicine is filed based on statistics, like law of large numbers, must have some exceptions. Medical behavior is full of uncertainty. Patients or families expect different, often easy to produce disputes. In the practice of criminal judgment, the review of causal relation gives excessive attention in activity of generated risks. Using objective imputation theory can be an extreme fit with its core value. Medical behavior is an interception behavior. In the equipment, expertise and other objective conditions, the standard medical behavior is floating. Medical personnel should not be responsible for the disease and can’t be responsible for objective and unavoidable result. Finally, this article will be on the Supreme Court on the 182 criminal judgments to conduct a more complete discussion. To discuss the difference of review of causal relation and objective imputation theory. In the practice of criminal judgment, objective imputation theory should to prudently assess risks in the medical practices.
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Wu, Meng-ju, and 吳孟儒. "The study of decriminalization for medical negligence." Thesis, 2012. http://ndltd.ncl.edu.tw/handle/96959135395499400764.
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碩士國立雲林科技大學
科技法律研究所碩士班
100
Over the past years, the patients and their families have no longer only depended on doctors about the information of healthcare due to the development of technology and raising consumer’s awareness. Hence, higher expectation of healthcare quality has been acquired. In addition, the awareness of human right on healthcare has been lifting, and, the decision-making power of patients became more important. Therefore, when the medical result is unable to achieve patients’ and their families’ expectation, medical disputes are prone to occur and then result in many lawsuits. Most of legal action of medical disputes are Criminal Prosecution or Criminal with Civil Prosecution in Taiwan. The reason is that the public right (authority) is expected to provide better status for accusers during the process of investigation. This also helps the accusers obtain a reasonable and ideal compensation when the medical professionals are encountering the pressure derived from Criminal Prosecution. Currently, many people in medical world argued that the system of healthcare would collapse soon because of poor structure of health system, huge amount of compensation. The most important reason is that the Criminal Prosecution brings heavy burden to high-risky specialists such as doctors of General Medicine, General Surgery, Gynecology, Paediatrics, Emergency or Anesthesiology department. For the purpose of addressing the problem, medical professionals have tried to promote medical negligence decriminalization vigorously. However, the legal professions think that under the principles of fairness, it is less likely to remove the prosecution of Criminal Law for any particular industry. This thesis illustrates the current method of dealing with medical negligence and the punishment of medical negligence based on Criminal Law to explain the medical negligence in Criminal Law, Administrative Law or Civil Law. Discuss the process in dealing with the medical argument, and compare the medical negligence in Germany, America, Japan and China. Finally to evaluate is it proper to make and limit the medical negligence decriminalization, and to make the suggestion to amend the law in the future.
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yu-mei, Cheng, and 程尤美. "The Research of Medical Negligence -Focusing on Transparency of Medical Identification." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/699cp2.
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碩士開南大學
法律學系
103
Abstract This thesis is divided into six chapters, and its framework of content is presented as follows: Chapter 1 is the introduction. First, the research motives and purposes of this study are explained. Second, the methodology used in this study and the limitations are discussed. Finally, the medical terms, such as medical practices, medical standards, customary medical practices and clinical practice guidelines, and evidence-based medicine, mentioned in this thesis are defined and explained. Chapter 2 presents an overview of medical malpractice and the objective duty of care in medical practice. This chapter addresses practitioner faults in medical criminal law, the development of the theory of negligence, breach of duty of care in medicine, and conditions for medical practice to be classed as malpractice. Chapter 3 expounds the rules of strict proof adopted by the Code of Criminal Procedure in Taiwan and explicates the two concepts of admissibility of evidence and investigation procedure. All evidence presented in criminal proceedings must be formally noted. First, whether admissible evidence exists must be determined. If the admissibility of evidence is confirmed, further legal investigation proceedings can be requested. Subsequently, relevant principles related to evidence, such as presumption of innocence and the privilege against self-incrimination, are briefly described. In addition, the meaning of admissibility of evidence and the restrictions on admissibility of evidence are explained. For example, whether violating the principle of direct trial, hearsay-rule evidence, evidence violating the principle of relevance, and opinion evidence have no admissibility as evidence is addressed. Questions regarding how to determine the admissibility of evidence for the identification of evidence and whether the medical malpractice identification in this regard is controversial are discussed. Chapter 4 discusses the judgment of identified results, by using the purposes of criminal identification as a starting point, to clarify the differences and similarities in the identification and conduct purposes between the investigation and trial. Issues pertinent to the absolute and relative scientific aspects in an evidential report and whether these disparities affect the binding force of the evidential report are elaborated. Whether the characteristics of medical malpractice identification genuinely belong to scientific identification is also discussed. Chapter 5 presents interviews and statistical data to reveal the current status and problems in the system of medical treatment appraisal. Topics discussed include the institution appraisal, qualification of forensic appraiser, disputes of first identification, multiple appraisal, problems in customary medical practice, completeness of evidential reports, and judge’s free evaluation of evidence through inner conviction. The current system of medical treatment appraisal is further investigated and reviewed. In addition to the conclusion of this thesis, Chapter 6 provides suggestions according to the content of Chapter 5. The provisions of medical appraisal is expected to be made more transparent and precise so that the crucial but difficult medical appraisal can play a real, effective role.
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Pan, Chun, and 潘純. "The Criteria of Penalty Judgments on Medical Negligence." Thesis, 2011. http://ndltd.ncl.edu.tw/handle/02542731264365048346.
Full textAbstract:
碩士東吳大學
法律學系
99
When the patient or his/ her relatives are not satisfied with the results of medical treatment, the relations between doctors and patients are tensional and challenged immediately. No one likes to see medical dispute happening, which is unbearably painful for doctors, patients and their relatives. However, the cases of medical dispute happening repeatedly warn us that medical dispute has become an issue that every doctor needs to confront with. To resolve the dispute, patients always adopt criminal action against doctors in our judicial practice. With the judicial intervention, they believe that the more efficiently investigating evidence can cause stress of criminal responsibility on doctors, which gives doctors lots of bother and challenges. Nevertheless, what penalty law is the verdict based on? What reasons are judges based on to indict a doctor, whose job is to cure disease, with the same name of professional negligence as they do to a truck driver? Not only doctors but also judicial personnel suffer much stress and challenges from the measures of penalty action. Indeed, to judge the procedure of medical negligence is very complicated because it includes both law and medicals. Also, drawing a proper line to fairly judge the dispute between doctors and patients is a great challenge. Therefore, this article examines theories on criminal responsibilities of medical negligence and its practical experiences. First, the issues on constituent elements, illegality, and criminal responsibility of medical negligence will be discussed to examine proper judging standards. In our country, the theories and judicial practices adopt different opinions on causation, which affects the range of conducting negligence. Most of the cases judging negligence still adopt the traditional theory, using attention obligation as its corner stone. Also, it is very common to find that judges do not detail causation in the cases of concrete medical malpractice. Besides the traditional examining method, an objective crimination theory is useful to deal with misconduct of negligence from the view of conducting quality. Therefore, it can have a new mode to examine a criminal of medical malpractice. Besides the familiar medical custom, now the judge can rule the cases of medical negligence with medical practice guideline, which regulates each medical specialty on evidence-based medicine. This guideline can be a standard of rational and objective verdicts for criminal medical malpractice. Finally, although it is still impossible to decriminalize medical negligence in our country, except the gross negligence, the day of limiting the criminal responsibility of medical negligence is coming.
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Huang, Hui-Man, and 黃惠滿. "Criminal Judgments to Medical Negligence in Nursing Professionals." Thesis, 2012. http://ndltd.ncl.edu.tw/handle/69203736484189010848.
Full textAbstract:
碩士國立高雄大學
法律學系碩士班
100
Past studies of criminal judgements involving medical negligence in nursing have usually been negeleted. This study, firstly introduce the concept of function and role of nursing in health care system. Secondly, literature relating to criminal negligenc and medical negligence, criminal judgements to medical negligence on nurses, are reviewed. Following, a case report and criminal judgements of the Supreme Court, in Taiwan, in cases involving nurses are provided and investigated to discuss the illegality of medical negligence. In nurse-patient relationships, literature shows that not only the fact relations, but also the legal relations should be explored. “Medical negligence in nursing professionals” relates to nursing professionals engage in nursing or medical-assistance behaviors that has a duty of care to their patients, where the professional has been neglectful in his/her duties and the patient has consequently suffered physical trauma or death. When the nurse is sentenced to guilt, the criminal judgment depends on the criterion of clinical nursing practice guideline and objective duty of care. This study uses a retrospective data, and analyzes the written verdicts from a law database, since 1997 to June, 2012. Fifteen cases involved nurses and the delivery of nursing services. These 15 criminal prosecutions are analysed, and the findings is focused on the crimes of medical negligence. It is found that seven cases out of 15 lost their trials. Most of the nursing staffs came from long-term care units. This study identifies 11 characterics on causality of medical negligence, which belongs to four sub-catocory, and two major themes. Two themes are: (1) inappropriate internal nursing process (includes nine characterics) and unusual practice risk beyond daily nursing services (includes two characterics). Possibly the most frequent professional negligence cases involve nursing professionals who have either failed to act – or omitted to act – with the duty of care, is related to nursing intervention. Through this study, it is expected that nursing and legal professionals can have a better understanding to the medical negligence in nursing.
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Wei-Tso, Liu, and 劉威佐. "The Criteria of Criminal Judgements to Medical Negligence." Thesis, 2013. http://ndltd.ncl.edu.tw/handle/00828233675588210763.
Full textAbstract:
碩士國立臺北大學
法律學系法律專業組
101
Medical negligence is an unfortunate problem in our country. While everyone would like to believe that doctors don't make mistakes, they are only human. If a patient feels that his or her doctor handled their treatment negligently, then they will have the right to seek compensation for their financial, physical and emotional sufferings by filing a medical negligence (also known as medical malpractice) case. Filing a medical malpractice lawsuit against a doctor for that matter may seem like an unscrupulous thing to do. The fact is, most people do not want to sue the people who are charged with taking care of us when we’re ill or injured because it doesn’t seem like an ethical thing to do. The problem is, it is the only way in our legal system a patient injured by malpractice can get some compensation for the damages inflicted on them. Filing a malpractice suit is the only way a patient can be “made whole”; That is to say, demand compensation to cover all the costs, both real economic costs and non-economic costs, past, present and future. There are two fundamental purposes for pursuing a medical malpractice lawsuit against a doctor, medical personnel and or hospital. First and foremost is to seek compensation for the injured patient. The second function of a malpractice suit is to provide a civil means of preventing further malpractice by the same medical professional(s). But what happens to the doctor? In the vast majority of medical malpractice cases, the doctor being sued will continue to practice medicine. Although a lawsuit has no effect on the doctors license to practice medicine, however, it’s the process that makes all the suffering and doctors will be severely impacted by the lawsuit. Not only doctors but the judicial personnel, who has lack of required medical knowledge are also suffer from certain amount of stress and challenges when ruling a medical malpractice’s case. Therefore, an effective method to evaluate and help making judgment upon medical negligence is desperately required.
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Lu, Pei-Ling, and 呂佩玲. "A Study on Criminal Liability of Medical Negligence." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/03533039059655804594.
Full textAbstract:
碩士國立臺灣海洋大學
海洋法律研究所
103
As medical science progresses, patients’ awareness of their rights also grow over time. Nevertheless, bioversatility of human being contributes to unpredictable risks of medical treatments; and the cases of unsatisfied patients suing their physicians also rapidly increases every year. This growing number of criminal liabilities of medical negligence does not only increase the tense between patients and their doctors, but also sabotages the rights of both patients and their doctors. Accordingly, patients and their doctors both need to well understand criminal liability of medical negligence. In the present study on Taiwan’s criminal law regarding criminal liability of medical negligence, we overview the legal theory of negligence and medical errors, the elements that comprise criminal medical negligence, due diligence standards, objective approaches to prevent medical malpractices, as well as the legal causation in criminal medical negligence. In addition, we analyze the liability of medical error made by a medical teamwork; and we also compare Taiwan’s criminal liability of medical negligence with others, like those in Germany, United States, Japan, and China. Take into account the criteria of criminal liability of medical negligence in other countries, we therefore exam Taiwan’s criminal liability of medical negligence, and propose to call for laws to limit Taiwan’s criminal liability of medical negligence as well as make it more clear to understand. Keyword: Negligence, Criminal Liability, Medical Negligence, Medical Practice
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Wu, Ching-Chang, and 吳勁昌. "A Study on Civil Liability of Medical Negligence." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/83752032115308433857.
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WANG, MING-HO, and 王明河. "Study on the Appraisal System of Medical Negligence." Thesis, 2019. http://ndltd.ncl.edu.tw/handle/wyv25b.
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Wang, Wen-Hung, and 王文弘. "Investigation of Tracheostomy-related Medical Practices and Criminal Negligence." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/24312747238409478713.
Full textAbstract:
碩士國立中正大學
法律學研究所
103
In the variety of acute disease, the problem of breathing is most urgent. When breathing stop because of obstruction, the patient will lose the brain stem function within a minute, and will have serious brain cell damage after five minutes. Therefore the patient usually became the vegetative state or the result of death because of hypoxic encephalopathy even CPR can save a life, the consequently urgent airway management must complete within short of 2-3 minutes. If the first line of physicians can not immediately establish airway patency, it usually has already caused irreversible consequences while support physician arrives, family members usually don't easily accept because of unexpected results of its coming, and the medical malpractice will occur. However, in such emergency situation and time to grab life, only "at the time" and "live" physicians know the critical scenes, when the outcome of the medical act could not entirely satisfied with the families expect, bring civil or criminal told to court. After the court received and send medical identification, medical evaluation committee made the appraisal report as the time to visit the scene, and the opinion was filled with so-called "medical routine", once the medical act failing to "medical routine" in the current practice is likely to be considered a violation of the duty of care, judges and prosecutors often decided according to only medical appraisal report, physicians may bring criminal law penalties. However, the human physique different, they may change greatly even if the same disease, "medical routine" can not fit all the "possibility", if medical act practice only according to "medical routine", physicians will be a "law doctor", the law become a medical criteria, above the medicine. The medical practices of physicians had to be conservative in this atmosphere of ambient pressure, less to see the high-risk patients, to enter the low-risk divisions, to treat minor ailments without medical illness, to explain the disease both analog, which we called as defensive medicine. At present, there is no related criminal negligence of critical airway emergency in the literature review. In the current study, we analyzed the criminal proceedings concerning emergency treatment of critical airway judgment and found that physicians losing rate of 30%, especially at the local court physician losing as much as 50 percent rate. This rate were far higher than previous reports of all physician, high-risk emergency doctors, and cardiac surgery specialist with the results of losing rate of the criminal proceedings between 3.4% and 28%. In addition, we also found the identification results of medical committee strongly dominated the final verdict, objective imputation (the behavior of non-price) and causality (the results of the non-price) are all adopted or all not by medical review will result in not guilty or certainly guilty for the defendant physician; when objective causal attribution and identification results were vague, the district court judge's evaluation of evidence tend to consider the defendant doctor is guilty (80%). When physicians face the high-risk patients with critical airway, the disease often quick change, life-moment decision to rescue patients must be made in minutes and seconds. How to protect themselves? A physician could become defendants at this type of medical malpractice will not be limited to high-risk divisions (such as the emergency department, cardiac surgeons, neurosurgeons), other specialist divisions (such as anesthesia, thoracic surgery, chest medicine, otolaryngology, rehabilitation department) are likely to be defendants if magagement of the critical airway is not ideal. So we want to know if practice are not in accordance with the "medical routine" (non-price behavior), it is destined to be sentenced in violation of the duty of care fate? What will be the medical routine of trial court in different stages of airway disposal of current medical practice? Whether does causality (the result of non-price) in an emergency situation become the magic hoop which a physician can not escape? This is the purposes of this thesis lies. In addition, the judge causality of critical airway cases need to analyze what stage of the natural progression of diseases such as hypoxic encephalopathy has been reached, and whether the diseases can be effectively avoided or blocked by medical practices. Therefore, we propose the authentication method to determine the causal relationship between airway disposal and patients casualties as "whether natural processes of hypoxic encephalopathy can be effectively avoided or intercept by medical practices" and construct a flow chart to determine the causal relationship between critical airway cases, we hope this examine ways to determine the causal relationship of critical airway cases can reduce the judiciary to finds a causal relationship by the conditions at the time of causal thinking, but it was formally known as quite a causal form name.
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Nkabinde, Fortunate Thobeka. "Mediation : an alternative dispute resolution in medical negligence cases." Diss., 2018. http://hdl.handle.net/10500/25499.
Full textAbstract:
Medical negligence is a growing concern within South Africa.1 The medical environment has great potential for conflict, because even the best trained physicians can commit errors that result in medical disabilities and sometimes in death.2 The conflicts that follow from these errors are mostly fuelled by emotions and they can become very expensive and time-consuming to settle using the litigation process.3 There is a growing recognition that alternative dispute resolution (ADR) systems in healthcare may alleviate some of the financial and psychological burdens on doctors and patients involved in medical negligence disputes. Mediation is a method of ADR that is flexible and it permits the parties to the dispute to have control over the resolution.
A typical medical negligence dispute is driven by intensely emotional factors on the part of injured patients. Victims are not merely seeking financial compensation but they are also looking to understand the circumstances that brought on the event at hand. They want closure. A huge issue with regard to medical negligence litigation is the manner in which the claims are resolved. Litigation provides injured patients and caregivers with a traditional platform for addressing medical negligence claims. However, due to many reasons, this system seems not to be adequate for dealing with disputes arising from alleged medical negligence. Mediation offers a promising solution to the problems surrounding redress of medical negligence disputes.Jurisprudence
LL. M.
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Fang, Jing-Wen, and 方靖玟. "A Study on the Treatment of Medical Malpractice and Decriminalization of Medical Negligence." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/74338188911153080128.
Full textAbstract:
碩士世新大學
法律學研究所(含碩專班)
103
There are often disputes among the evaluations of medical practices from a criminal law aspect.Medical practices are closely boned with huge matters for humanity, such as birth, aging, sickness and death; it is also so essential to the human society. Therefore, the issue that shall medical malpractice be decriminalized is widely discussed amongst dharma and medical communities. The medical community usually upholds opposing opinions on the issue that medical practice is adequate to the application of criminal law.They believe that applying criminal law upon these medical personnel is the main reason why medical talents keep escaping from medical system and why medical system collapses. However, does the punishment of criminal law really lead to the collapse of medical system?Or is this assumption just caused by the fear and anticipation from medical community?This article is intended to discuss whether empirical data method decriminalization of negligent medical practice has its necessity. The idea of medical practice in domestic market transforms from the past "patriarchy" thinking to the nowadays trend that emphasizes on “patient right”; thence, whether a medical practice operated by doctor obtains such patient’s permission becomes a focus of attention. As to the practice of patient’s right to determine their won will on medical treatment, the society starts to attach more importance on “whether such doctor has full explained about the process” as a part of his duties. And when the result of such medical treatment does not turn out as expected, there is a possibility to happen a medical dispute.Moreover, the frequent medical disputes also bring a large amount of lawsuits to these medical personnel, making them exhausted for solving the disputes and seriously complaining about this. This paper aims to analyze the content of "The Draft of Medical Malpractice Dispute Resolution and Medical Incident Compensation Act”, wishing to provide advices which will make the content more completed. Through this " The Draft of Medical Malpractice Dispute Resolution and Medical Incident Compensation Act”, it can create healthy ways to solve medical disputes other than lawsuits. It is expected to solve the burden on medical personnel for solving medical disputes while in the same time still focusing peoples’ lives and rights to have healthy bodies; which will finally create a win-win situation between doctors and patients.
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Tsai, Hsin-hui, and 蔡心慧. "A Study of Criminal Liability for Medical Negligence – Taiwan Case." Thesis, 2007. http://ndltd.ncl.edu.tw/handle/75753638515682230520.
Full textAbstract:
碩士逢甲大學
經濟學所
95
In recent years, the growth of income has lead to an increase in demand for medical care, and thereafter an increase in medical disputes. In 2005, 124 doctors are forced to face the criminally liability for medical negligence. It means that the medical negligence rate is about 0.06% at that year. Now doctors begin to strive for their rights, although so a lot of questions still exist in criminal liability for medical negligence. This paper studies criminal liability for medical negligence, and sees whether the deterrent effect exists. By using time series data 1968~2005, we found there is no significant effect of criminal liability on medical negligence, which means that no deterrent effect exists.
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Ko, Ying-Chen, and 柯盈甄. "Severe Patients and Causation of Criminal Negligence in Medical Cases." Thesis, 2011. http://ndltd.ncl.edu.tw/handle/30277797663846668618.
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碩士國立清華大學
科技法律研究所
99
In this article, I used three real cases to illustrate how to identify the criminal responsibility for severe patients with the intervention of medical error, especially for the causation between medical error and patients’ death. The first part of this article is the introduction of some examples of medical error in Taiwan following by some problems that related to the three cases. Second, I roughly illustrated the regulation of medical error in the Criminal Law and then set different categories for the three cases based on the charts and SOAP. I discussed about the adequate theory in Taiwan and Japan, the avoidibility theory and theory of enhanced risk. According to these theories, I matched the categories and cases to the theories, and found some problem through the discussion. Finally, I discussed the cases with my opinion.
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Chia-Hui, Hung, and 洪佳慧. "Criminal Action through Non-Genuine Omission- Focus on Medical Negligence." Thesis, 2013. http://ndltd.ncl.edu.tw/handle/74421663943944831029.
Full textAbstract:
碩士玄奘大學
法律學系碩士班
101
Criminal Action through Non-Genuine Omission- Focus on Medical Negligence ABSTRACT Chapter 1 Introduction: expound the emphasis of the discussion in chapters of the text, the cause and purpose of the study, the scope and restrictions of the study, and the methods of the stud. Chapter 2 Non-genuine omission of medical malpractice: this chapter is divided into four sections, expounding the constitutive elements of Non-genuine omission of medical malpractice and the discussion of the controversial part. Chapter 3 Doctor’s duty of care: this chapter is divided into two sections; first it expounds the doctor’s duty of care, and then discusses the scope of the attending doctor’s duty of care. Because the attending doctor’s duty of care is hardly discussed in articles of domestic scholars, lots of domestic court’s judgments are collected and roughly, five kinds of the attending doctor’s duty of care are concluded in this text. Chapter 4 Status of guarantor of doctors: this chapter is divided into three sections; it first introduces nine kinds of the present status of guarantor, and then explores the present establishment source of the status of guarantor of doctors. In present time, establishment of doctor’s status of guarantor is mostly based on doctors’ voluntary commitments. But still, based on some laws and also some scholars recognize previous act which creates dangerous condition as one source of the doctor’s guarantor’s position. Based on this idea, some points of view are brought up in this text. Chapter 5 Discussion of Cases: it is divided into three chapters. This text uses three real cases as examples to explore the condition of doctors forming non-genuine omission of medical malpractice. Chapter 6 Conclusion: summarize the ideas and comments of the above chapters.
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HUNG, YI-MIN, and 洪佾旻. "EBM in the Court：An Empirical Study of Medical Negligence Litigation." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/yr8n76.
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CHEN, HUAN-WEN, and 陳煥文. "The Medical Interception Theory and the Comparative Negligence of the Patients." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/2j9w3m.
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碩士銘傳大學
法律學系碩士在職專班
106
Risks exist in all medical treatments or examinations, and more and more patients realize that the doctors are not all right. So the medical dispute in Taiwan became much in recent years. In the past, the rule of the comparative negligence of the patients is rarely used in the judge because the patient was unexpected to have professional medical knowledge. Because the Taiwanese’s education level increased much, the medical knowledge of the patients also improved more and more. Many factors, e.g. outer resources, doctor-patient interactions, have effects on the final medical decision. One of the most important factors is the patient’s cooperation. If the patient had poor cooperation, the responsibility in medical disputes should be balanced in the patients and the doctors. We try to discuss about the medical interception theory and the comparative negligence of the patients in the court judgments.
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Pienaar, Catherina Elizabeth. "An analysis of evidence-based medicine in context of medical negligence litigation." Diss., 2011. http://hdl.handle.net/2263/28099.
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A medical negligence case presented to the court is based on averments of neglected duty of care of the defending doctor, a duty owed in accordance with the law of delict, and alternatively and/or accumulatively averments that the contractual agreement between the complainant and the defending doctor was not honoured. In order to prove failure of duty of care and/or breach of agreement, the complainant bears the onus of proof to present to the court reliable medical evidence that would enable the court to reach a decision. The courts have ruled for and against many plaintiffs throughout the years, setting the standards and yardsticks for the requirements of medical negligence. The value or lack thereof of the medical evidence presented came under the magnifying glass in the case of Michael vs Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188 SCA and the court indicated the necessity for a "collective mind" from the medical profession. Brilliant legal writers published on this topic and the search and need created this dissertation. The study sets as goal to scrutinize the quality of medical evidence in general, and more specific the Michael-case. From a wide perspective medical evidence was researched, and the term evidence-based medicine led the study to an existing "collective mind" of the medical profession. The study investigated the history and development of evidence-based medicine in order to evaluate whether it can be seen as the "collective mind" of the medical profession. Satisfied that the "collective mind" was found the study tested the available medical evidence, randomly searched, against specific medical issues in the Michael-case and the study compiled substantial medical evidence to work with. An independent expert was consulted and the medical evidence was scrutinized with commentary, explanation and the basis formulated for negligence. The Michael-case was deconstructed and subsequently reconstructed, and the outcome predictably different, based on sound medical evidence. The study explained and warned against exploitation of the statistical data and incorrect interpretation of results. The study concluded that the court as the ultimate trier of the facts should determine whether the medical evidence presented to the court forms part of the "collective mind", and whether it complied with logical principles and reasoning prior to reaching a decision. General notes: Dissertation (LLM)--University of Pretoria, 2011.
Public Law
unrestricted
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Wang, Jyh-Horng, and 王至弘. "Determination of The Standard of Care in Medical Negligence — Including Study on the Categorized Judgments in Orthopedic Medical Litigations." Thesis, 2010. http://ndltd.ncl.edu.tw/handle/25806662582698472609.
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碩士東吳大學
法律學系
98
The volume of medical dispute cases increase dramatically in recent years because of the uncertain and unpredictable nature of medical mishaps and the right consciousness of the general people. The medical civil liability in medical malpractice suits is generally based on tort. However, in our country, claim of damages against hospitals or physicians for medical malpractice may be possible by actions for breach of contract. In theories, there are minor variations in the scope of liabilities and statute of limitations between these two actions. However, in practice, there should be little difference on the judgment between actions for breach of contract or sue in tort. Ordinarily, the medical standard of care is based on the reasonable clinical practice at that time and place. A doctor is not negligence if he acts in accordance with a practice accepted at the time as proper by a reasonable body of medical opinion, even though other doctors may adopt a different practice. Thus, the definition and the contents of reasonable medical standard of care in related to the laws of Taiwan and the United States are discussed and analyzed with the focus on what is reasonable or what is indefensible. In this article, the actual clinical practices causing medical injuries are classified as: (1) medical decisional behaviors; and (2) medical technical behaviors. In addition, the injured tissues are further assessed according to the concept of safe margin (the distance between the injured tissues and the surgical site) to determine the probabilities of injury. As to the complications, foreseeability and preventability (methods of avoidance) are critically measured according to the current clinical practice to justify the defendant’s conduct and to Test for breach of the duty. Finally, the orthopedic medical malpractice suits in Taiwan civil court from 2000 to 2009 are collected and categorized into eight types as: diagnosis error, dispute about the choice of treatment methods, poor surgical technique, anesthesia risk, complications, infections, nerve injuries, and informed consent. The medical standard of care in each subtypes are discussed briefly for the judgment of negligence.
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Matumba, Rendani Margaret. "Medical negligence as novus actus interveniens: an analysis of the South African delictual jurisprudence." Diss., 2019. http://hdl.handle.net/11602/1322.
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Department of JurisprudenceLLM
The South African Constitution guarantees equal rights to everyone. The right to equality is specifically protected in Section 9 of the Constitution. Section 9(1) states that ‗everyone is equal before the law and has the right to equal protection and benefit of the law‘. However, ensuring equality of treatment between the victim of medical negligence and the health service provider has not enjoyed a satisfactory judicial approach. The causes of death or harm suffered by the patient poses a serious problem in the medico-legal investigation. The major focus of this proposed dissertation is the impact on the chain of causation from the victim‘s perspective because of medical negligence and the South African courts‘ approach in such matters. The courts do not seem to have satisfactorily applied the principles of novus actus interveniens in such cases. The proposed research hopes to expose unfair discrimination against the victim of medical negligence through its analysis of the courts‘ approach in medical negligence claims. The approach used by the courts will be critically analysed to determine whether the degree of legal or judicial protectionism in favour of the medical profession is adequate. In recent times, government health service providers have inundated government health departments with claims arising from medical negligence. Although this could seem beneficial from the victim‘s perspective as any relief obtained could be enforced on the assets of the relevant health department, the success level is relatively low as the concept of novus actus interveniens has continued to pose a great challenge to the victim in proving a claim against the medical personnel. This research sought to find out how the protection of victims of medical negligence could be enhanced in spite of the common law defence of novus actus interveniens available to the health service providers.
NRF
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Richards, Bernadette Joy. "Informed choice, not informed consent : towards a meaningful consideration of pre-treatment advice." Thesis, 2012. http://hdl.handle.net/2440/72180.
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Healthcare professionals, legal professionals, patients, scholars and members of Research Ethics Committees all hear the term ‘informed consent’ and seem to assume a common meaning. It is a phrase often said and widely accepted, but what does it really mean? This thesis challenges the doctrine of ‘informed consent’ and argues that it lacks coherence and fails in its foundational goal: to protect the autonomous patient. It argues that ‘informed consent’ is a misnomer; that the process under consideration is not about the consent to treatment, rather it is about individual choice. This thesis critically examines the evolution of the doctrine of ‘informed consent’ across three jurisdictions (the United States, the United Kingdom and Australia) and focuses on the central debates. These include the appropriate measure for standard of care and the nature of the test for causation. It asserts that these ongoing issues mask the true dilemma facing the Courts which is the problematic nature of linking a dignitary harm (the denial of complete information) with a logically irrelevant physical harm (the manifestation of a physical risk inherent in the treatment). The thesis departs from existing literature on ‘informed consent’ by challenging the relevance of the term ‘consent’ and proposing the adoption of choice. The proposed model of choice emerges from the critical analysis of the law and the existing body of scholarly literature. These both demonstrate an ongoing struggle with the ability of the existing doctrine to achieve the core aim of protection of autonomy. Central to this proposal is the adoption of a narrow, purposive definition of autonomy which is based upon the ideal of narrative autonomy. Under this model the individual is identified as a storyteller, in control of their own narrative path. Crucial to this ideal is the provision of information regarding possible future selves, and it is here that the key concepts of autonomy and choice under the proposed model of ‘informed choice’ meet. The thesis concludes by drawing these two themes together and demonstrating that clarity can only be found by retreating from ‘informed consent’ and adopting a legal ideal of ‘informed choice’.Thesis (Ph.D.) -- University of Adelaide, Law School, 2012
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Van, den Heever Patrick. "The application of the doctrine of res ipsa loquitur to medical negligence cases : a comparative survey." Thesis, 2002. http://hdl.handle.net/2263/27065.
Full textAbstract:
The purpose and object of this thesis was to investigate and research the utility and effect of the application of the doctrine of res ipsa loquitur to medical negligence cases. More particularly, it was endeavoured to establish conclusively that the approach of the South African courts that the doctrine can never find application to medical negligence cases is untenable and out of touch with modern approaches adopted by other Common law countries. It was further endeavoured to provide a theoretical and practical legal framework within which the application of the doctrine to medical negligence cases and related matters can develop in South Africa, in future. The research includes a comprehensive comparative survey of the diverging approaches with regard to the application of the doctrine to medical negligence cases between the legal systems of South Africa, England and the United States of America. The most important conclusions which the investigation revealed were the following: 1. There are substantial differences with regard to the application of the doctrine between the three legal systems, with regard to the requirements for, the nature of, the procedural effect on the onus of proof and the nature of the defendant's explanation in rebuttal. These differences are further compounded by differences between the principles enunciated by the courts and the opinions of legal commentators on the subject. 2. Whereas the approach adopted by the South African courts with regard to the application of the doctrine to medical negligence cases is outdated and untenable, more legal clarity, however, exists in South Africa with regard to the application of the doctrine to personal injury cases in general, so that the existing principles which are applied provide a structure within which the extension of its application to medical accidents can be readily accommodated. 3. The current approach adopted by England, where provision is made for the application of the doctrine to obvious medical blunders as well as more complex matters, where the plaintiff is permitted to buttress evidence relating to the res with expert medical evidence, commends itself for acceptance. Such an approach not only alleviates the plaintiff's burden of proof but also provides adequate protection to the defendant by endorsing the principle of honest doubt in the form of letting the defendant prevail if he comes to court and explains that despite due care, untoward results do sometimes occur especially in the practice of medicine. 4. The approach adopted by the majority of jurisdictions in the United States of America is probably too liberal and unstructured so that it may in some instances result in the imposition of liability in medical context, in a arbitrary fashion. 5. Constitutional principles such as procedural equality, policy and other considerations support the extension of the application of the doctrine to medical negligence cases in South Africa. There are also substantial grounds for advancing a persuasive argument that the majority judgment in the Van Wyk v Lewis case should be overruled and that the general application of the doctrine of res ipsa loquitur should not only be extended to cases of medical negligence, but also to related legal procedures which follow a medical accident such as medical inquests, criminal prosecutions and disciplinary inquiries instituted by the Health Professions Council of South Africa.Thesis (LLD)--University of Pretoria, 2007.
Public Law
LLD
unrestricted
45
WU, KUAN-HAN, and 吳冠漢. "The Constitutive Requirements of Derivative Offences of Criminal Negligence by Omission in Medical Malpractice Cases." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/86028625203723372853.
Full textAbstract:
碩士銘傳大學
法律學系碩士在職專班
105
The aim of medical treatment, which is mostly well intentioned, is to cure and help the patient. If the criminal law egregiously intervenes in the natural process of medicine, the motivation to implement life-saving treatment would be eliminated. Physicians might engage in defensive medicine to protect themselves from legal criticize. The objective of this study is to investigate the derivative offense of criminal negligence by omission, which is the most commonly encountered type of offense in medical malpractice. We aim to analyze the main elements of the derivative offense of criminal negligence by omission based on the Medical Care Act in order to establish a rational basis for a correct judgment. First, medical treatment is individualized according to personnel, facility, expertise, and the patient’s condition. Since it is impossible to set up clear rules in highly diverse medical scenarios, the Medical Care Act instead contains several obligations of action such as the obligation to provide emergency care. A physician, who has a legal obligation to prevent the subsequent occurrence of an offense but has failed to do so, would commit a derivative criminal offense by omission. Most medical malpractice cases should be judged by the derivative offense of criminal negligence by omission in our opinion. A person who has a guarantor’s position has the legal obligation to prevent the subsequent occurrence of an offense. The physician guarantor’s position originated from two aspects: 1) a “voluntary commitment”: that the physician personally evaluated and treated a patient; and 2) a “previous act which creates a dangerous condition”: that the physician knew that the patient needed medical treatment but refused to bear the obligation. The obligation of a physician guarantor should be provided by law, rather than by the expansion of morals or ethics. According to Articles 73 and 82 of the Medical Care Act, the medical obligation is restricted to the objective scope of specific personnel, facility, and expertise. A physician shall attend carefully to the patient and shall transfer the patient to another medical institution if full treatment could not be applied due to objective factors. In our opinion, “attend carefully to the patient in fulfilling the medical obligation “covers the nature and significance of the obligation of a physician guarantor. To protect the rights of patients, a physician should carefully attend to patients (according to the scope of specific personnel, facility, and expertise) and transfer the patient to another medical institution, if indicated. It is difficult to clearly decide whether a defendant physician has attended carefully to the patient in fulfilling the medical obligation. The present theories or doctrines that include “clinical discretion ”, “medical regulation,” or “standard of reasonable physician” may not be sufficient to completely determine whether the medical obligation has been fulfilled. In our opinion, to determine whether a defendant physician has carefully attended to the patient in fulfilling a medical obligation, we should determine if the physician applied an “adequate and appropriate treatment” based on the principles of the Medical Care Act. If the physician had applied an adequate and appropriate treatment, which may vary based on objective influencing factors, then the physician would have already fulfilled the obligation to treat the patients and would not have committed the derivative criminal offense by omission. If the adequate appropriate treatment is executable but has not been performed, then the causation between the offense and the omission should further be examined. In derivative criminal offences by omission, the causation is hypothetical, so a stricter standard should be applied. The hypothetical causation would be tenable only if the offense would not appears as a "near certainty” when the omission of the obligation has been fulfilled. Besides, if the offense would still occur even when the obligations were fulfilled, the offense is deemed inevitable. The criminal law cannot blame defendants if the offense is inevitable. Finally, the nature of negligence that includes subjective/objective foreseeability and breach of duty are already determined in the judgment of “attend carefully to patients in fulfilling the medical obligation” and “hypothetical causation.” Thus, in malpractice cases involving the derivative criminal offense by omission, the determination of negligence is only nominal and is replaced by the objective judgments of medical obligation. We think this is the major characteristic of malpractice cases involving the derivative criminal offense by omission and we list the suggested order to be followed for step-by-step judgment in these cases. In considering the best interests for both the physician and the patients, the guiding principle for medical obligations should be as follows: whether the physician applied adequate and appropriate treatment, which may vary according to the objective factors of facility, personnel, and expertise. Whether the offense is excusable or inevitable should also be examined in order to protect the procedural and substantive rights of the defendant physician that are justified by law in Taiwan. It is our hope that these options may help establish reasonable principles for adjudicating the derivative offense of criminal negligence by omission.
46
Lee, JMY. "The standard of medical care in Malaysia : the case for legislative reform." Thesis, 2012. https://eprints.utas.edu.au/15885/2/whole-lee-thesis-2012.pdf.
Full textAbstract:
This thesis analyses the law relating to the standard of care expected of doctors in the areas of diagnosis and treatment in Malaysia. The analysis does not deal with issues concerning disclosure of risk.
The central argument in this thesis is that the law for determining the standard of care of doctors in the areas of diagnosis and treatment in Malaysia is ambiguous and uncertain, and that legislation is the most effective reform method to resolve these problems. A clear and predictable legal framework is recommended for legislative enactment in Malaysia. One of the main objectives of this proposed legal framework is to strike a balance between the interests of defendant doctors and that of injured patients in medical negligence litigation concerning issues of diagnosis and treatment.
This thesis traces the historical development of the law in Malaysia, from the application of the original English Bolam test in the 1960s to the current legal position as decided by the highest Malaysian court decision in Foo Fio Na v Dr Soo Fook Mun (2007) 1 MLJ 593. It takes a cross-jurisdictional approach to examine the corresponding legal development in the United Kingdom, Singapore and the Australian states. A consistent trend in these jurisdictions is the adoption of the original Bolam test with modifications, albeit in different forms.
It is argued that the decision in Foo Fio Na was a lost opportunity for the highest Malaysian court to give a definitive statement for determining the standard of care in the areas of medical diagnosis and treatment. The basis for this argument is the ambiguity in Foo Fio Na on the issue of negligent treatment and the conflicting interpretations of this decision by academic scholars and judges in subsequent Malaysian lower court cases. It is proposed that Malaysia should codify the qualified version of the Bolam test in legislation as a means of resolving the uncertainty and ambiguity in the current state of the law.
It is also suggested that the proposed legislation should implement the procedural rules on the use of expert witnesses similar to those under the Uniform Civil Procedure Rules 1999 (Qld), although with slight modifications. The proposed procedural framework requires the appointment of a single agreed or a single court-appointed expert prior to the commencement of legal proceedings. Litigants may also appoint an additional agreed or court-appointed expert or experts after legal proceedings have started. Under the proposal, the courts are also given the authority to allow litigants to engage their own medical experts provided that certain conditions are satisfied. These recommendations aim to save costs, facilitate a speedy resolution of medical disputes and provide flexibility in the adjudication of the standard of care in medical diagnosis and treatment.
47
Cheng, Mei-Hui, and 鄭美慧. "A Study on Criminal Negligence in Medical Cases -- Taking a Jurisdiction of the Supreme Court as an Example." Thesis, 2013. http://ndltd.ncl.edu.tw/handle/47457644039532315893.
Full textAbstract:
碩士東吳大學
法律學系
101
Due to the medical litigation caused by the dispute on medical treatments, the doctor-patient relationship has devolved into a tense stand-off. Moreover, criminal negligence has produced a chilling effect upon the medical community. This atmosphere is not conducive to the treatment of disease. It impedes the performance in accordance with medical standards and the progress in the field of general medicine. Furthermore, it wastes medical resources, depletes social funds, and results in a loss-loss situation. Health care workers, standing as safeguards on the front lines, defend the rights of patients' health and lives. Compared to other professionals, they are subject to higher social expectations and heavier social responsibilities, and due to the uncertainty and limits imposed upon the medical profession, they also have to endure higher risks while practicing medicine. This dissertation is based on the theory and the current practices of criminal law to explore the constituent elements of medical negligence, specifically regarding the contents covered by duties of care, the violations thereof, tolerable risks, and the principles of the investigations overseen and implemented by Medical Review Committee. This dissertation further refers to and compares with foreign experiences of medical malpractice compensation systems. Under the medical malpractice compensation system, the substantial compensation may help to reduce victims’ motivation of suing health care workers for their negligence and therefore decrease the incidents of lawsuits. The ultimate suggestion is the court practices of criminal law respect the medical professionals’ own judgments. After all, health care workers should not be liable for inevitable medical risks. The criminal court’s determination on medical negligence should prudently comply with the modesty of criminal law. Consequently, the harmonization of the doctor-patient relationship not only benefits patients and doctors but also benefits all involved parties in society.
48
Rama, Tiago Manuel dos Santos. "Negligência Médica - O erro médico sob uma perspetiva Jurídico-Penal." Master's thesis, 2020. http://hdl.handle.net/10316/90384.
Full textAbstract:
Dissertação de Mestrado em Ciências Jurídico-Forenses apresentada à Faculdade de DireitoO trabalho trata o tema da negligência médica e aborda as intervenções médicas (diagnóstico, cura, tratamento) em ambiente hospitalar e contém uma análise aos conceitos de “Direito da Medicina”, o erro médico (e a sua definição), a negligência por parte dos profissionais no exercício da sua actividade, o dever de cuidado , o princípio da confiança e a culpa, para conseguirmos determinar quando é que um profissional de saúde pode ser criminalmente responsabilizado pela prática de factos ilícitos no exercício da sua actividade e exclusivamente relacionados com esta. O Direito Penal só deve ser mobilizado enquanto direito de último ratio e, no caso de condutas negligentes, só intervém quando estas ponham em causa bens jurídicos com dignidade penal. Não se pode punir todos os comportamentos descuidados, mas somente aqueles que violem os bens jurídicos que são mais valiosos (vida, integridade física, liberdade). Ao longo do trabalho pretende-se analisar a responsabilidade penal dos profissionais de saúde. A responsabilidade penal surge pela acção ou omissão de um fato típico contrário ao direito. Assim o ato praticado terá de estar tipificado na lei (CP e legislação extravagante) para que o agente, neste caso os profissionais de saúde, possa ser responsabilizado criminalmente e assim penalizado, valendo a máxima constitucional nullum crimen, nulla poena sine lege e o princípio da legalidade criminal igualmente previsto no artigo 1º do Código Penal. A conclusão tem as ilações que resultaram da análise aos conceitos acima referenciados.
The work deals with the issue of medical negligence and addresses medical interventions (diagnosis, cure, treatment) in a hospital environment and contains an analysis of the concepts of “Law of Medicine”, medical error (and its definition), negligence on the part of professionals in the exercise of their activity, the duty of care, the principle of trust and guilt, in order to determine when a health professional can be held criminally responsible for the practice of unlawful facts in the exercise of his activity and exclusively related to this . Criminal Law should only be mobilized as a right of last ratio and, in the case of negligent conduct, it only intervenes when these call into question legal assets with criminal dignity. You cannot punish all careless behavior, but only those that violate the legal assets that are most valuable (life, physical integrity, freedom). Throughout the work it is intended to analyze the criminal liability of health professionals. Criminal liability arises for the action or omission of a typical fact contrary to the law. Thus, the act performed must be typified in the law (CP and extravagant legislation) so that the agent, in this case health professionals, can be held criminally responsible and thus penalized, with the constitutional maxim nullum crimen, nulla poena sine lege and the principle criminal law also provided for in Article 1 of the Penal Code. The conclusion has the conclusions that resulted from the analysis of the concepts referenced above.
49
Scharf, George Michael. "The medico-legal pitfalls of the medical expert witness." Diss., 2014. http://hdl.handle.net/10500/14225.
Full textAbstract:
The fastest growing field of law is undoubtedly that of Medical Law with the civil
and disciplinary cases flowing from it. Globalization, international communication,
development and evolution of Law as well as Medicine, cause this worldwide
rising medical litigation.
Humanitarian rights, post-modern scepticism and even iconoclastic attitudes
contribute to this phenomenon. Medico-legal litigation and disciplinary complaints
rise (in South Africa) up to 10 per cent per year.
To assist the courts and legal profession, in medico-legal issues, helping the
parties where the plaintiff has the burden of proof and the defendant for rebuttal, a
medical expert witness must be used.
The dilemmas and pitfalls arise, in that although knowledgeable medical experts
could be used to guide the courts to the correct decision, the lack of a legal mind
setting, court procedure and legal knowledge could affect the relevance, credibility
and reliability, making the medical evidence of poor quality.
The legal profession, deliberately, could “abuse” medical expert witnesses with
demanding and coercion of results, which have unrealistic and unreasonable
expectations. “Case building” occurs, especially in the adversarial systems of law,
making the medical expert vulnerable under cross-examination, when it is shown
that the witness has turned into a “hired gun” or is unfair. Thus, lacunae develop,
making reasonable cases difficult and a quagmire of facts have to be evaluated for
unreasonableness, credibility and appropriateness, compounded by the fact that
seldom, cases are comparable.
The danger is that the presiding officer could be misled and with limited medical
knowledge and misplaced values, could reach the wrong findings. Several cases
arguably show that this has led to wrongful outcomes and even unacceptable
jurisprudence.
The desire to “win” a case, can make a medical witness lose credibility and
reasonableness with loss of objectivity, realism and relevance. With personality
traits and subjectivity, the case becomes argumentative, obstinate and could even
lead to lies. The miasmatic, hostile witness emerges, leading to embarrassing,
unnecessary prolongation of court procedures.
The medical expert witness should be well guided by the legal profession and well
informed of the issues. Medical witnesses should have legal training and insight
into the legal and court procedures. At the time of discovery of documents, via
arbitration or mediation, medical experts should strive to reach consensus and
then present their unified finding, helping the parties fairly and expediting the legal
procedure and processes.Private Law
LLM
50
Lin, Yi-Syuan, and 林宜萱. "A Study on the Difference of the Medical Negligence between the Criminal and the Civil Liability for Malpractice—Focusing on the Duty of Care and the Legal Causation." Thesis, 2013. http://ndltd.ncl.edu.tw/handle/58227789467037886309.
Full textAbstract:
碩士國立臺北大學
法律學系一般生組
101
Medical lawsuits often file for criminal and civil prosecution, and the judgments often result in different consequence. There may be criminal proceedings announce the doctor is not guilty, but the civil proceedings announce the doctor have to compensate the patient for their damages. I’m curious about why the same incidents but in criminal conviction and civil verdict will result in different consequence, so I discussed for the text. For the differences from the criminal convictions and civil judgments, this text is focused on the "duty of care" and the "legal causation" because those two are the constituent elements of the liability for malpractice. The text is also involved in the normative functions and basic structure of the civil and criminal liability for malpractice, the connotation, foundation, standard of the duty of care, how to determine the legal causation, the loss of chance of survival, the duty of disclosure and notice, idiosyncratic cases, if the medical criminal liability for malpractice shall be limited to gross negligence, analysis of practice cases, and issues related to medical negligence. Although there are significant differences in the normative functions between the civil and criminal liability for malpractice, the basic structure of the civil and criminal liability for malpractice is common. The structure of the civil and criminal liability for malpractice is also classified as "the violation of the duty of care" and" legal causation ". The establishments of the civil liability for malpractice also have to consider whether the person who makes the juridical acts can have foreseeability and preventability about the results. On the "legal causation" part, criminal or civil proceedings are all taken the proximate cause theory in judicial practice, and its criteria are not different. Therefore, the establishments of civil and criminal liability for malpractice are so similar. But the normative functions of the civil and criminal liability for malpractice and others are different, and result in different consequence of civil and criminal judgments in medical negligence. For example, the loss of chance of survival theory, this text considers the theory was not applicable to criminal matters. And, this text also considers the medical criminal liability for malpractice should be limited to gross negligence, if the case is not about gross negligence, it seems more better to use civil and administrative liability to deal with. In this text, the similarities and differences of the medical negligence between the criminal and the civil liability for malpractice are the research direction, hoping to be able to raise some of the issues which can be explored and clarify the differences between the criminal and the civil liability for malpractice on the medical negligence.