二十一医疗纠纷.docx

1、二十一医疗纠纷二十一医疗纠纷第二十一章 医疗纠纷与医疗事故-教学纲要教学要求：1.掌握：医疗纠纷的概念与特点；医疗事故的概念与构成的条件；医疗纠纷的类型和发生原因；医疗事故的类型和发生的原因；法医在医疗纠纷和医疗事故鉴定中的作用；法医尸体解剖在医疗纠纷处理中的作用；非法行医的概念与常见类型。2.熟悉：医疗事故的分级；医疗纠纷或医疗事故的处理程序； 鉴定及鉴定程序；医疗纠纷法医病理学鉴定注意事项。3了解：医疗纠纷和医疗事故民事责任的确定；医疗纠纷和医疗事故行政责任的确定；医疗纠纷中的刑事责任。【教学内容】第一节概述一、医疗纠纷的概念与特点二、医疗事故的概念与构成条件第二节医疗纠纷与医疗事故的类型

2、和发生原因一、医疗纠纷的类型和发生原因二、医疗事故的类型和发生原因三、医疗事故的分级第三节医疗纠纷与医疗事故的责任类型一、医疗纠纷或医疗事故民事责任的确定二、医疗纠纷或医疗事故行政责任的确定三、医疗纠纷中的刑事责任第四节医疗纠纷或医疗事故的处理与鉴定一、医疗纠纷或医疗事故的处理程序二、法医在医疗纠纷和医疗事故鉴定中的作用三、法医尸体解剖在医疗纠纷处理中的作用第五节非法行医与非法行医罪一、非法行医的概念与常见类型二、非法行医罪一、单选题1、医疗事故处理条例规定患者死亡，医患双方当事人不能确定死因或者对死因有异议的，应当在患者死亡后（）小时内进行尸检。拒绝或者拖延尸检，超过规定时间，影响对死因判定

3、的，由拒绝或者拖延的一方承担责任。A、96 B、72 C、48 D、24二、名词解释1、医疗纠纷（medical tangle）2、医疗事故（medical negligence或medical malpractice）3、医源性医疗纠纷（iatrogenic medical tangle）4、医疗过失纠纷（tangle from medical fault）5、非医源性医疗纠纷（noniatrogenic medical tangle）6、医疗意外（medical accident）7、一级甲等医疗事故8、一级乙等医疗事故9、假药10、劣药11、非法行医（illegal medical pr

4、actice）三、问答题1、医疗事故的构成条件有哪几点？Italy: medical negligence as a crimeMedical negligence claims in Italy are on the increase. In the absence of legal aid, most claimants pursue doctors via the criminal justice system but with a standard not of “beyond all reasonable doubt” but merely “on the balance of pr

5、obability”. As a result, most cases are settled out of court, often regardless of merit. Most doctors now live in fear that the next “informing warrant” may be for them.The Italian health-care system has undergone significant change in recent years. For example, the former USLs (local health authori

6、ties) are now called “firms” and the balance of income/expenditure is a measure of performance. A share of the “profits” is allocated to management and health workers in some units. The handling of medical negligence has altered too. On June 2, 1999, Italys civil justice system reverted to a two-tra

7、ck procedure. Italy provides no legal aid and most cases of alleged medical negligence are pursued via the criminal courts at no cost to the claimant. Alternative dispute resolution is seeing some growth.Civil procedureFor claimants who can afford civil litigation, there are no particular regulation

8、s or protocols that might deliver a fast, efficient, effective, and economical service. The process can be slow and bureaucratic, some cases taking many years to come to trial. The Codice Civile regulates the relations between doctor and patient but with rules applicable to any intellectual professi

9、on.Before 1995 there were only two routes, the Pretura and the Tribunale (sitting with three magistrates). Then a three-track system was established to speed up civil justice and in a manner similar to the recent Woolf reforms in the UK.1 The system aimed to allocate cases appropriately to one of th

10、ree tracks and attempted to introduce some rules and guidelines for the active management of each particular case. The three tracks were: the giudice di pace (a justice of the peace, often a lawyer); the pretore, a judge sitting alone; and the tribunale civile, with three judges, for more complex ca

11、ses. The giudice di pace largely achieved the objectives of speeding up proceedings so that claims up to 5 million lire (1700) could be heard within a year. Doctors specialising in medical law were often called to estimate damages.The pretore heard cases up to 30 million lire (10000). Again the prop

12、ortion of cases dealt with in less than a year increased significantly between 1995 and 1999. Claimant and defendant called experts and the judge called his own medicolegal court-appointed doctor and specific experts. The medicolegal doctor was asked to give his opinion of current best practice. How

13、ever, this was not the Bolam standard, where the doctor is judged against the reasonable and acceptable practice of the time (not best practice). Deciding what contemporary best practice is can be difficult enough, and it is even more difficult to say what best practice was at the time of the event

14、complained of. This pretore level was abolished from June, 1999.The two-track system introduced in June last year retains the giudice di pace but the tribunals now sit with a single judge. Having one judge instead of three reduces the time taken for cases to come to court and the cost of individual

15、cases. To access the new system a patient seeking compensation via the civil justice system usually has to get a second opinion from another consultant or from the specialist medicolegal doctor (see below) to establish whether or not there is a prima facie case of negligence.Within the civil system

16、problems remain, despite the recent changes. There is no strict case management; vast numbers of experts may be called; the absence of legal aid prompts claimants to pursue doctors via the criminal route, leading to criminal charges, guilty verdicts, and on occasion prison sentences; the standard of

17、 proof (best practice”) has yet to be defined in Italian law; and the role of the medicolegal doctor is paramount.The medicolegal doctor is a specialist trained in medicine and law. He or she will often be appointed by the court and will have a duty to the court, advising the court on “best practice

18、”. This advice can be difficult since there will be experts for the claimant and for the defence from different schools of thought. Medicolegal doctors may also call their own experts to support a particular view of best practice.The medical expert has a duty to the client (claimant or defendant), n

19、ot the court. All information gleaned during proceedings and instructions is privileged. Medical experts have become a growth industry in Italy (along with the rise in litigation). Significant numbers of experts may be called at any one trial; numbers are controlled to some extent since the number o

20、f experts called for each side must be equal to or less than the number called by the judge. Experts are often seen as working on the defence or claimants teams rather than being independent professionals.Criminal procedure The Italian health-care system, public and private, has faced an exponential

21、 rise in negligence claims over the past 10 years. Most of these claims have been pursued through the criminal courts. This avenue is free to the claimant, and the state bears all the expense of evidence gathering and prosecution. This means of redress is vitally important for the poor but there are

22、 huge numbers of illfounded claims too.The criminal investigation1 begins with the doctor receiving informazione di garanzia (informing warrant) following allegations of professional negligence after the death of a patient (culpable homicide) or due to some omission or commission causing the patient

23、 to be unwell, or to have delayed or inappropriate treatment, misdiagnosis, or permanent disability. Homicide is usually pursued at the instigation of the police while allegations of medical negligence with other consequences are prosecuted only if the patient has lodged a complaint. Criminal procee

24、dings in cases of non-fatal injury can be stopped at the behest of the claimant, usually when the case is settled before trial, which it often is.The prosecution, the defence, and the court itself will appoint their own experts. A judge for the preliminary inquiries may also be asked to intervene wh

25、en the need to appoint a different expert is felt either by the doctor or prosecutor. This appointee will be super partes (ie, not acting for either side) and sworn in, whereas the prosecutor-appointed one is not.When a necropsy is ordered by the prosecutor, the doctors being investigated have to be

26、 sent warrants. The prosecutor may even issue a warrant against unknown defendants or name as many doctors as he can find on the hospitals staff list. Doctors can thus find themselves defendants and confronted by a necropsy report with the body already buried or they can find themselves named in a m

27、ultidefendant suit indiscriminately “just to be on the safe side”.When a death is not involved the prosecutor does not have to inform anyone, and secrecy dictates that a report can be based on documents and surreptitious examination of the patient. The first step is often to sequester the clinical n

28、otes, leaving the doctor without access to his own records. Even if the doctor knows of the existence of important documents, these may be withheld at the discretion of the prosecutor, including (and frequently), favourable expert reports. A determined prosecutor may commission several reports until

29、 one expert damns the doctorand that is the only report presented to the court. To make matters worse, the standard of proof used by the court in a criminal prosecution of a doctor is “on the balance of probability”. In most cases the insurer pays out and the claimant withdraws the case even from th

30、e most eager of prosecutors.Warrants are served on doctors at their place of work, and within a hospital the result can be a climate of suspicion and witch-hunts with some managers and doctors in confrontation. Medical colleagues can be found asking who the current scapegoat is or how much it will c

31、ost to get out of the line of fire. The psychological effects on the profession and the negative effects on performance are difficult to gauge but disenchantment is now the norm. It is also not uncommon to hear patients, on their first approach to medical services, state a clear indication of suing

32、if they do not get better. Is this the way to practise medicine? Doctors in Italy today are forming alternative plans to see themselves to retirement, to avoid having to seek psychiatric help or the hassle of being used and abused by this grotesque system.一、单选题答案C二、名词解释答案1、医疗纠纷（medical tangle）指患方因对诊疗护理过程中发生的不良医疗后果及其产生的原因与医方认识不一致而发生纠纷和争议，要求追究医方责任和赔偿，而向卫生行政管理部门提出处理或向司法机关提请司法诉讼的案件。2、医疗事故（medical negligence或medical malpractice）指医疗机构及其医务人员在医疗活动中，违反了医疗卫生管理法律、法规、部门规章和诊疗护理规范、常规，过失造成患者人身损害的事故。