American traditional medical damage identification method

Hello, the following principles should be followed to judge whether there is medical fault in the hospital:

(A) the minority law that can be respected

This law means that doctors can't be held responsible solely on the basis of their choice of most recognized treatment methods. Doctors must have a high degree of professional knowledge and technology in diagnosis and treatment, but different doctors may have different views on the diagnosis and treatment of the same disease. In this case, doctors should be allowed a relative degree of discretion. Liu's discretion within the scope of knowledge is beyond reproach. Only knowledge based on discretion, especially doctors' unique habits, should be used in a way that does not violate medical common sense and is recognized as reasonable by the medical community.

In this way, if the unique methods or theories used by doctors have no reasonable basis recognized by the medical community, their faults can also be inferred. Science is different from referendum, and the truth is often in the hands of a few people. Therefore, when medical behavior brings harm to patients, it cannot be determined that it is completely correct just because most people agree to take certain treatment measures, nor can a few people be held responsible just because the treatment methods adopted are recognized by a few people. Remember to judge whether the responsibility is based on whether there is fault; As long as the treatment methods adopted by doctors do not violate their professional standards, they cannot be considered to be at fault.

(B) the law of medical judgment

The so-called law of medical judgment means that as long as medical professionals make decisions according to the requirements of professional standards, they cannot be held accountable just because they admit their mistakes afterwards. When treating patients, if they have done their best to meet their professional requirements in terms of attention, knowledge and technical standards, they will not be responsible for the damage caused by their honest wrong judgment.

(3) the best judgment rule

In addition to the duty of care, knowledge and technology required by professional standards, some courts in the United States also require that the so-called judgment of doctors must be his best judgment, especially when doctors know that the current popular medical methods are unreasonably dangerous, the courts will not exempt him from responsibility because his medical behavior meets the general standards. It can also be said that when doctors' professional judgment ability is higher than the general standard, and doctors know that the medical methods required by the general standard are unreasonably dangerous, the court's requirements for doctors' duty of care are higher than the general standard. The court asked the doctor to make the best judgment according to his own ability before exempting him. There are similar requirements in Japanese civil law theory, which are called the obligation of best care or the obligation of complete care.

The rule of best judgment is different from the general duty of care of doctors. If the doctor's best judgment is different from the general treatment method, but it also increases the safety of diagnosis and treatment for patients, then this rule can certainly be applied. If the doctor's best judgment not only goes against the traditional treatment method, but also increases other risks of patients, then the court should be very cautious in applying this principle, and it is advisable to apply the above principle to increase the flexibility of doctors' diagnosis and treatment. That is to say, the best judgment rule should be applied only when the best judgment treatment method will not increase the risk of patients or the treatment method has been considered as a respectable minority.

(d) Urgency of medical care and medical attempt

When determining the doctor's fault, there are also the urgency of medical treatment and the influence of medical attempt on it.

The so-called urgency of medical treatment means that due to the urgent time of medical judgment, it is impossible to examine, observe and diagnose the patient's condition and symptoms in detail, and it is difficult to ask doctors to have the same attention ability as usual. Therefore, urgency becomes the most important condition to reduce the duty of care in medical negligence. Some scholars believe that this is not intended to reduce the duty of care of the medical side, and the same degree of care is still used as the judgment standard, but when it is impossible to pay attention due to emergency, the medical side is exempted from responsibility. The so-called medical attempt means that although any medical behavior has abstract threats, medical theory must rely on new drug attempts or skill experiments to develop. At this time, there are often quite unknown areas. Doctors should bear the duty of care in this unknown field. Therefore, when making a new medical attempt, doctors should carefully consider the patient's symptoms, physique, hospital equipment, doctor's ability, other necessary experiments and possible dangers, and provide comprehensive first-aid equipment, otherwise it will be blamed on the fault.

(5) the law of allowable risk

Or allowable danger jurisprudence and allowable danger law. This law is the theoretical basis of the new negligence theory. It believes that only the fact that the rights and interests of others are infringed does not necessarily need to be punished. Under special circumstances, in order to seek social progress, human activities that threaten legal interests should be allowed, just like medical behavior. In modern times, with the development of science and the rapid progress of material civilization, human life has been significantly improved, but at the same time, the risk of personal and property damage has also increased. Just as cars bring convenience and efficiency to human beings, they also bring frequent traffic accidents. The progress of medicine makes it possible to cure diseases that were considered incurable in the past, thus bringing joy and hope to patients and their relatives. The use of new drugs is accompanied by side effects. However, medical progress was made through Qian Qian's repeated experiments and several failures. Therefore, to judge whether the medical behavior produces responsibility, we should consider the application of the law of allowable risk, and the theory of allowable risk will become another pillar to block the illegality of medical behavior with equal emphasis on patients' commitment.

How to compensate for medical errors?

The calculation standard of medical fault compensation is as follows:

(1) Medical expenses: determined according to the receipt of hospitalization expenses issued by medical institutions, medical records, diagnosis certificates and other relevant evidence;

(2) Lost time: determined according to the lost time and income of the victim;

The lost time fee is determined according to the certificate issued by the medical institution where the victim receives treatment. If the victim continues to miss work due to injury and disability, the time of missing work can be calculated to the day before the date of disability;

If the victim has a fixed income, the lost time fee shall be calculated according to the actual reduced income. If the victim has no fixed income, it shall be calculated according to his average income in the last three years; If the victim cannot provide evidence to prove his average income in the last three years, he may refer to the average salary of employees in the same industry or similar industries where the court of appeal is located in the previous year;

(3) Nursing expenses: determined according to the income of nursing staff, the number of nurses and the nursing period;

If the nursing staff has income, it shall be calculated with reference to the provisions of the lost time fee; If the nursing staff has no income or employs nursing staff, it shall be calculated with reference to the local labor remuneration standard for nursing staff at the same level. In principle, there are 1 nursing staff, but if medical institutions or appraisal institutions have clear opinions, the number of nursing staff can be determined by reference;

The nursing period should be calculated until the victim recovers his self-care ability. If the victim can't recover his self-care ability due to disability, a reasonable nursing period can be determined according to his age, health status and other factors, but the longest period is no more than 20 years;

After the victim is disabled, the nursing level should be determined according to the degree of nursing dependence and the preparation of disability AIDS;

(4) Transportation expenses: calculated according to the actual expenses incurred by the victim and his necessary accompanying personnel for medical treatment or transfer to hospital for treatment. Transportation expenses should be based on official bills; Relevant credentials shall be consistent with the place, time, times and frequency of medical treatment;

(5) Hospitalization food allowance: it can be determined by referring to the food allowance standard for ordinary staff of local state organs;

(6) Nutrition fee: determined according to the disability of the victim and referring to the opinions of medical institutions;

(7) Disability compensation: calculated according to the degree or level of disability of the victim and the per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the appeal court is located;

(eight) the cost of assistive devices for the disabled: calculated according to the reasonable cost standard of common applicable devices. If the injury has special needs, you can refer to the opinions of the auxiliary equipment configuration organization to determine the corresponding reasonable cost standard;

(9) Funeral expenses: based on the average monthly salary of employees in the last year where the court of appeal is located, the total amount is calculated for six months;

(10) Living expenses of dependants: calculated according to the degree of incapacity of dependants and the standards of per capita consumption expenditure of urban residents and per capita annual consumption expenditure of rural residents in the last year where the appeal court is located;

(1 1) Death compensation: calculated according to the per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the court of appeal is located, and calculated for 20 years. However, for those over 60 years of age, the age will be reduced by one year for each additional year; Seventy-five years of age or older, calculated by five years.