重大医疗过失的判断标准——基于对中美医疗过失犯罪的比较考察

重大医疗过失意味着,诊疗行为表现出对患者安全的有意识漠视。重大医疗过失的典型行为类型是,明知从事医疗所需要的前提条件严重欠缺,却冒险开始或继续实施诊疗,以及在诊疗中轻率冒险或不注意而未认识到应该认识到的显著危险。最近,在医学判断错误成为问题的案件中,刑事司法的介入反映了医疗过失处罚范围的扩大化趋势。     

Prevention science,drug abuse prevention,and Life Skills Training: Comments on the state of the science

There has been tremendous growth in the field of prevention science over the past two decades. The defining features of contemporary prevention science are high quality empirical research using rigorous and well-established scientific methods, careful hyphothesis testing, and the systematic accumulation of knowledge. One area where substantial progress has been made is in our understanding of the etiology and prevention of tobacoo, alcohol, and illicit drug abuse. In this paper, we review the growth in prevention as a scientific enterprise, discuss advances in drug abuse prevention research, and review the effectiveness of one approach to the problem of adolescent drug abuse, the Life Skills Traning (LST) program, and the methodological strengths of the LST evaluation research. In addition, we provide a response to criticism regarding two types of data analysis in evaluation research, and show that these analyses can help address a number of important research questions with implications for theory and practice. First, the analysis of high fidelity subsamples can address research questions about the importance of program implementation fidelity; and second, composite measures of concurrent tobacco, alcohol, and marijuana use (i.e., polydrug use) are useful in testing research questions about program effects on more serious levels of drug involvement. With an increasing number of ramdomized controlled trials underway, the field of prevention science is contributing to a new generation of evidence-based approaches and policies that, if widely utilized, offer the potential of reducing the mortality and morbidity associated with a number of major health and social problems.     

Democratizing the hospital: deliberative-democratic bioethics

The increased presence of moral consultants, or bioethicists, within hospitals and clinics in the last two decades has begun to raise questions about their sources of authority and norms of practice. Under pressure from critics in the social sciences, a number of bioethicists have recently raised the ideal of democratic deliberation to defend and reconstruct their place in the medical field. This article sheds light on these developments by placing bioethics in a historical context that shows an early tension between bioethicists as whistle-blowers and bioethicists as incremental reformers of medical practice. This article also develops a conceptual framework for analysis that indicates how such tensions have grown more complicated for contemporary bioethicists because they occupy a fluid and structurally ambiguous role in which there are multiple sources of normative expectations and little guidance for meeting these expectations. The liminality of the role and the overload of expectations have made bioethics vulnerable to methodological criticisms from social scientists. This article concludes that such methodological criticisms cannot address the more systemic problems of liminality and overload. The ideal of democratic deliberation, though imperfect, does address these systemic problems because it shows bioethicists how to gain guidance and share responsibility for moral consultation.     

Patient termination of a life-sustaining medical device: Suicide or natural death?

Medical technology has made tremendous strides in extending the lives of patients who have suffered organ failure. Machines can now replace the function of the kidneys, the heart, and other vital organs. Much has been written about a patient's right to refuse or direct the withdrawal of medical treatment, especially at the end of life, under the guise of “death with dignity.” However, little attention has been paid to the situation where a patient elects to deactivate their life-sustaining medical device without a physician's involvement. This raises the challenging question of whether the patient's manner of death should be classified as suicide or natural. Surprisingly, common law, statutes, medical ethics, and public health practice are not in alignment on the answer. This article will explore the ramifications and far-reaching impact that such divergence has on the survivors and the medical community, as well as recommend corrective actions and practical approaches for the medical and legal practitioner.     

Unscientific health practice and disciplinary and consumer protection litigation

Evidence-based health care is expected of their practitioners by contemporary health professions. This requires health care to have a foundation in scholarly literature and to have a scientifically valid methodology. However, there are many instances of registered and unregistered practitioners either providing assessment and treatment that does not conform to such requirements or making representations about likely efficacy that are unjustifiable by reference to peer-reviewed clinical knowledge. Sometimes such conduct is predatory and deliberately exploitative; other times it is simply misconceived on the part of practitioners who regard themselves as medical pioneers. This editorial situates such conduct within unscientific and unorthodox health practice. It surveys recent consumer protection and disciplinary decisions to evaluate the role of the law in regulating such conduct. It argues in favour of an assertive legal response to protect vulnerable patients or potential patients against forms of treatment and promises of outcomes that are unscientific and deceptive.     

Love/Power

Love supplants power as it is often understood in contemporary justice practice, obliterating it utterly. What, then, fills the vacuum? How can justice hope to endure without any mechanism for coercion? By what mechanism can justice hope to function? This essay will explore briefly Foucault’s thought about power as it functions in contemporary criminal justice, but will then develop a theoretical foundation inspired by Simone Weil, as well as a practical guide for a power modality that is consonant with the creation and sustainment of a loving justice.     

Pushing the boundaries of lawful assisted dying in The Netherlands? Existential suffering and lay assistance

Two matters that have a significant presence in the contemporary Dutch assisted dying debate, are the nature of the suffering required for an assisted death to be lawful, and the issue of who can lawfully assist. This article explores whether the lawful medical assisted dying model is too restrictive in failing to recognise existential suffering, considering selected case studies involving such suffering and lay assisted death. It addresses the question whether The Netherlands would take a trip down a slippery slope if the lawful model of assisted death were extended to cases where individuals are 'tired of life'.     

The Alchemy of Accomplishing Medicine (sman sgrub): Situating the Yuthok Heart Essence (G.yu thog snying thig) in Literature and History

This essay examines historical and contemporary connections between Buddhist and medical traditions through a study of the Accomplishing Medicine (sman sgrub) practice and the Yuthok Heart Essence (G.yu thog snying thig) anthology. Accomplishing Medicine is an esoteric Buddhist yogic and contemplative exercise focused on several levels of “alchemical” transformation. The article will trace the acquisition of this practice from India by Tibetan medical figures and its assimilation into medical practice. It will propose that this alchemical practice forms the central nexus of connection between Tibetan medicine and the Buddhist Nyingma tradition, and that this little-studied link is not a marginal feature of Tibetan medicine but rather one that has had a significant shaping factor on each tradition throughout history.     

Erewhon: A manifesto of the rehabilitative ideal

Samuel Butler's novel, Erewhon (1872) is well known as a minor literary classic. This article proposes that it is also important in criminological history, in epitomizing a generation of debate about the nature of criminal responsibility. Butler wished to illustrate a paradox: contemporary social and medical sciences showed the role of determinism in causing crime, yet the courts still acted on the myth of free will, individual choice, and responsibility. Butler satirized this by depicting an imaginary world where sick people were stigmatized and punished for a condition they could not help—just as real criminals were blamed for factors beyond their control. The novel is a call for the replacement of deterrent or retributive punishment by rehabilitation and a medical model. It was especially important in the early twentieth century in helping to popularize the attack on free will and deterrence, and in propagandizing for the new discretionary penology.     

Telemedicine and the law

The delivery of medical services through the use of modern technology is proving of significant benefit, particularly in remote communities where transportation of patients and medical practitioners is problematic. Technical systems supporting telemedicine-based consultations have been available for some years and more recently diagnostic services such as pathology and radiology have embraced this new technology. While teleradiology and telepathology allow medical services to be delivered across vast distances from highly populated areas to regions of low population density, the same technology can also deliver services across national and international boundaries. Where the patient and medical practitioner are located in different jurisdictions, issues arise regarding the regulation of medical service provision and this has an impact on the registration of medical practitioners, mutual recognition of training and specialisation and the administration of medical service provision. The increasing specialisation of medical practice and manpower shortages in key practice areas would suggest that there will be ongoing expansion of telemedicine services in the years to come. This will require greater standardisation of medical education, together with an improvement in arrangements for mutual recognition of medical practitioners across national boundaries.     

The ethical implications of prospective payment and corporate medical practice: A research agenda

The major trends in the growth of prospective payment and the corporatization of medical practice in the United States are examined. In particular, the ethical implications of these changes in the context of the multiple system goals of access, cost containment, and quality are considered. Considerable concern is being expressed that with the dominant emphasis on cost containment, the principles of access and quality might be compromised. This paper formulates a research agenda to address this question, based on a review and synthesis of empirical evidence and hypotheses about the probable or actual impact of these changes on the multiple health system goals. A basic premise is that ethical judgments should be grounded in empirical evidence about what actually is or will be.     

Rewriting the future? Biomedical advances and legal dilemmas

Developments in medical science have sparked public debate about the legal and ethical implications of new technologies. Within these debates a number of distinct discourses are evident, including discourses about the positive and negative implications of technological advances, the influence of globalisation on regulatory choice, and the challenges of articulating common values in a pluralistic society. This article argues that an understanding of these discourses is an essential part of understanding the nature of contemporary regulatory dilemmas.     

Health care and the homeless: a political parable for our time

The growth in the number of homeless persons is perhaps the most visible indicator of social disintegration in the 1980s, although health and health care are not the central issues of homelessness. This paper, which draws on the author's experience as chairman of the Committee on Health Care for Homeless People of the Institute of Medicine (IOM), describes what is known about the characteristics of homeless persons and the causes of homelessness, and about the health status of homeless persons, which is often not very good (but not significantly worse, it would appear, than that of other low-income persons). The contemporary history of health services targeted to homeless persons begins with the joint initiative of the Robert Wood Johnson Foundation and the Pew Charitable Trusts in 1985, which became the model for federal support through the Stewart B. McKinney Act of 1987. The McKinney Act, like the IOM report, demonstrates how, in contemporary American politics, there can be widespread political consensus not only about a problem but about solutions, while the resulting policy actions are largely symbolic.     

Retracted: A Legacy of Lynchings: Perceived Black Criminal Threat Among Whites

This article examines the legacy of lynchings on contemporary whites' views of blacks as criminal threats. To this end, it draws on prior literature on racial animus to demonstrate the sustained influence of lynching on contemporary America. We hypothesize that one long‐standing legacy of lynchings is its influence in shaping views about blacks as criminals and, in particular, as a group that poses a criminal threat to whites. In addition, we hypothesize that this effect will be greater among whites who live in areas in America where socioeconomic disadvantage and political conservatism are greater. Results of multilevel analyses of lynching and survey data on whites' views toward blacks support the hypotheses. In turn, they underscore the salience of understanding historical forces, including the legacy of lynchings that influence contemporary views of blacks, criminals, and punishment policies.     

Psychologising Jekyll,Demonising Hyde: The Strange Case of Criminal Responsibility

This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically late Victorian perplexities about criminality and criminal responsibility, and for more persistently troubling questions about the legitimacy of and practical basis for criminalization. A close reading of the story illustrates the complex mix of elements bearing on criminal responsibility-attribution, and—incidentally—helps to explain what is wrong with the influential argument that, by the end of the nineteenth Century, attributions of responsibility in English criminal law already rested primarily and unambiguously on factual findings about the defendant’s state of mind. Far from representing the triumph of a practice of responsibility-attribution grounded in the assessment of whether the defendant’s capacities were fully engaged, I argue that the terrain of mental derangement defences in late nineteenth Century England helps us to understand that longer-standing patterns of moral evaluation of character remained central to the criminal process. And precisely because ‘character’ remained key to the institutional effort to distinguish criminality and innocence, the ‘terror’ of Stevenson’s story resides in its questioning of whether either scientific knowledge or moral evaluation of character can provide a stable basis for attributions of responsibility. In conclusion, I will also suggest that Stevenson’s tale can help us to make sense of the resurgence of overtly ‘character-based’ practices of responsibility attribution in contemporary Britain and the United States, which themselves reflect a renewed crisis of confidence in our ability to effect a ‘dissociation’ between criminality and innocence.     

论医疗水平在司法鉴定中的应用

《中华人民共和国侵权责任法》于2010年7月1日起实施,进一步明确了医疗机构、医务人员的过错责任、免责事项等,在医疗侵权纠纷案件的司法鉴定实践中也相应出现了一些新情况和新问题,通过建立＂医疗机构当时医疗水平的评价体系＂,并通过用具体案例来说明＂当时医疗水平＂在司法实践中的具体应用。     

W(h)ither social work? Social work,social policy and law at an interface: Confronting the challenges and realising the potential in work with people needing care or services

Conclusion Social work asks of us all awkward questions, particularly since we are all members of the systems about which we are developing a critical knowledge base. This paper argues that social work, on the basis of a policy and political literacy, must engage in influencing higher levels of context. That is, it must engage with managers and policy makers about the objectives of welfare policy and the means by which they are to be realised — about issues of relevance to service users and to practice. This paper also suggests that other professional groups face the same awkward questions and must similarly engage in debates about the meaning of welfare, justice and rights. If social work in particular, and professional groups with which it interacts, lose the ability or willingness to question, they risk losing the empathy, values and practice skills which seek to counter the inequalities, internalised oppressions, alienation, and exclusion characteristic of contemporary social life. They risk identifying with the aggressor rather than using their position to promote an empowering difference.     

Four forms of ‘offender’ rehabilitation: Towards an interdisciplinary perspective

This paper aims to advance the case for a more fully interdisciplinary understanding of offender rehabilitation, partly as a means of shedding light upon and moving beyond contemporary ‘paradigm conflicts’. It begins with a review of current arguments about what a credible ‘offender’ rehabilitation theory requires and by exploring some aspects of current debates about different theories. It goes on to locate this specific kind of contemporary theory building in the context of historical arguments about and critiques of rehabilitation as a concept and in practice. In the third part of the paper, I explore the nature of the relationship between desistance theories and rehabilitation theories, so as to develop my concluding argument; that is, that debates about psychological rehabilitation have been hampered by a failure to engage fully with debates about at least three other forms of rehabilitation (legal, moral, and social) that emerge as being equally important in the process of desistance from crime.     

判定护理过失的基本标准分析

在医疗损害赔偿案件中,确定医疗行为是否存在过失非常关键.护理行为是医疗行为的重要组成部分,明确护理行为是否存在过失的标准对于司法实践具有重要意义.规制护理行为的医疗技术规范、鉴定机构出具的鉴定结论都不适于作为判定护理行为是否存在过失的基本标准,应该由法官以“合理护士”标准对护理行为是否存在过失进行判定.     

The standard of care and expert evidence of accepted practice in medical negligence

The topic of this article is the perennial issue in medical negligence litigation of various kinds of the extent to which it is a defence to a charge of lack of reasonable care that the defendant's conduct complied with accepted professional practice. Recent English interpretations of the controversial Bolam principle are considered, before the current approach of the courts and the Health and Disability Commissioner in New Zealand is described, using case illustrations. In New Zealand expert medical opinion of accepted practice is relevant to, but not conclusive of, the standard of care. There is, however, more freedom than pursuant to the current English approach for a decision-maker to reject expert opinion of accepted practice, because he or she is able to examine not just the logical defensibility of the practice but its overall reasonableness, including where the practice involved a risk assessment on a matter of clinical judgment. A decision to reject expert opinion of accepted practice is more readily made in areas which do not involve assessment, diagnosis and treatment.