评《侵权责任法》中的医疗损害责任

分析医疗损害责任纳入《侵权责任法》积极和消极意义的基础上,阐述了医疗纠纷的法律适用,并从解构医患法律关系入手,提出了坚持医疗纠纷中对医方宽容与对患者救济并行。构建医患法律关系的立法趋势。     

渎职犯罪案件公诉实践中的证据审查要点

由于渎职案件的侦破既可以"由人到事",又可以"由事到人",故渎职犯罪的证明方法不拘一格,通过直接证据快速且独立地锁定案件事实和凭借间接证据链接所有案件事实均能够达到证明效果。审查证据过程中应当考虑监管部门及国家机关工作人员在重大事故中所处的地位及其管理职能,综合考量被告人玩忽职守的程度,以此确定特定责任者因果关系的量化定位,在量刑建议中予以体现。     

医事犯罪理论研究述评

建国60年以来,我国刑法学界对医事犯罪的理论研究取得了显著的成绩。医疗事故罪、非法行医罪和非法进行节育手术罪等具体医事犯罪的研究都随着我国刑事立法的进程经历了不同的发展阶段,研究逐步深入。但是,在医事犯罪的诸多问题上还存在较大争议,通说性的观点少,不少观点还值得继续商榷。     

From ‘Doctor Knows Best’ to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions About Their Medical Treatment

In 1989, the House of Lords first derived a ‘best interests’ test for the medical treatment of adults who lack capacity from the doctrine of necessity and, now codified, the test continues to apply today. The Mental Capacity Act 2005 sets out a non‐exhaustive checklist of relevant considerations, but it gives no particular priority to the patient's wishes. There is also no formal expectation that the patient will participate directly in any court proceedings in which her best interests are to be determined. This article will consider the advantages and disadvantages of providing additional guidance to decision‐makers in order to help them navigate both taking seriously the wishes of people who lack capacity and, at the same time, not abandoning patients who need help and support. More specifically, this article advocates formalising current best practice in the Court of Protection through the introduction of a series of rebuttable presumptions, or starting points.     

Forensic Pathological Examination on 73 Medical Malpractice Cases of PediatricsCSCD

Objective: To analyse 73 medical malpractice cases of pediatrics for discussing the importance of forensic pathology in solving the issues such as medical malpractice of pediatrics. Methods: From January 2002 to August 2016, 73 medical malpractice cases of pediatrics with age of death between 28 days old and 10 years old were collected from Institute of Judical Expertise of Nanjing Medical University. The relationship between causes of death and related medical institutions was retrospectively analysed. Results: In 73 cases, the male to female ratio was 1.70:1, and ages of 28 days old to 1 year old were common (26 cases, 35.62%), followed by ages between 1 year old and 3 years old (21 cases, 28.77%). In 71 cases which had been determined the cause of death by postmortem examination, the main cause of death was disease, especially respiratory diseases (33 cases, 46.48%), followed by cardiovascular diseases (12 cases, 16.90%). In 75 medical institutes which involved with these medical malpractices, most were tertiary medical institutes (32, 42.67%), followed by the sub-secondary (excluding the secondary)medical institutions (23, 30.67%). The clinical diagnosis of 38 cases (52.05%) completely or mostly corresponded with the pathological findings. There were 35 cases (47.95%) undefined or misdiagnosed cases. Conclusion: Autopsy and forensic pathological examination contribute to determine causes of death, which not only provide scientific evidence for medical malpractice of pediatrics, but also enrich and develop clinical medical knowledge, and thus improve diagnosis and treatment level in a certain extent. © 2018 by the Editorial Department of Journal of Forensic Medicine.     

Fatal Overdose of Gamma‐hydroxybutyrate Acid After Ingestion of 1,4‐Butanediol

We report a case of fatal intoxication from 1,4‐butanediol (1,4‐BD), which was ingested by a young and “naïve” gamma‐hydroxybutyrate (GHB) consumer during a party with the co‐ingestion of alcohol, cannabis, and methylene‐dioxy‐methamphetamine. The following drug concentrations were found using gas chromatography coupled with mass spectrometry on autopsy samples and on a cup and a glass found at the scene: 20,350 mg/L (bottle) for 1,4‐BD; 1020 mg/L (femoral blood), 3380 mg/L (cardiac blood), 47,280 mg/L (gastric content), and 570 mg/L (vitreous humor) for GHB. The concentration of GHB is difficult to interpret in forensic cases due to the possibility of an endogenous production of GHB. The variable tolerance of the user may also modify the peri‐ and postmortem GHB concentrations. This case underscores the need to have many different sources of toxicology samples analyzed to avoid the hypothesis of endogenous production of GHB.     

Myocardial Bridging: A Meta‐Analysis of Prevalence

The main objective of this article was to analyze prevalence data about myocardial bridging (MB) in published studies. To this purpose, we performed a meta‐analysis of studies published in English literature that contained data about the prevalence of MB and its anatomical characteristics. The overall prevalence was 19% (CI: 17–21%); autopsy studies revealed an overall prevalence of 42% (CI: 30–55%), CT studies 22% (CI: 18–25%), and coronary angiography 6% (CI: 5–8%). Most bridges were located on the left anterior descending artery (82% overall, 63% on autopsy studies), had a mean thickness of 2.47 mm and a mean length of 19.3 mm. In conclusion, autopsy studies should be the gold standard in evaluating the actual prevalence of myocardial bridges, while in vivo high‐resolution CT scanning should be preferred to coronary angiography studies.     

Correcting the Count: Improving Vital Statistics Data Regarding Deaths Related to Obesity

Obesity can involve any organ system and compromise the overall health of an individual, including premature death. Despite the increased risk of death associated with being obese, obesity itself is infrequently indicated on the death certificate. We performed an audit of our records to identify how often “obesity” was listed on the death certificate to determine how our practices affected national mortality data collection regarding obesity‐related mortality. During the span of nearly 25 years, 0.2% of deaths were attributed to or contributed by obesity. Over the course of 5 years, 96% of selected natural deaths were likely underreported as being associated with obesity. We present an algorithm for certifiers to use to determine whether obesity should be listed on the death certificate and guidelines for certifying cases in which this is appropriate. Use of this algorithm will improve vital statistics concerning the role of obesity in causing or contributing to death.     

国外医疗保险一体化立法对我国的启示

实行社会保险型医疗保障制度的德国、日本等国家,近年来陆续修订原有法律,推动＂区分＂建设的医疗保险制度向一体化发展,医疗保险制度一体化已成为世界各国社会保障制度发展的趋势。借鉴国外经验,我国城乡基本医疗保险制度建设应引入经办机构竞争机制,提高医保运营活力;突出强制参保,扩大医疗保险覆盖面;推动管理部门职能整合,明确医保事业的责任主体,从而不断加快城乡基本医疗保险制度一体化进程。     

基本医疗保险服务协议的法律性质探讨

基本医疗保险服务协议是规范社会保险经办机构和定点医疗机构、定点零售药店双方行为的行为准则和重要法律依据,然而,对其法律性质的认定,学术界和实务界一直存有争议。行政私法合同是行政主体运用私法合同达致行政公法目的‘的手段,基本医疗保险服务协议符合行政私法合同的特征和本质属性,因此,基本医疗保险服务协议的法律性质是行政私法合同。