If a physician made a misdiagnosis, which brought about an undesirable result on his patient, he should assume the legly responsibility, nameal the indemnification for damage or the criminal liability for an accidental infliction of injury(homicide) out of duty.
The standard of criminal negligence depends on the existence on nonexistence of the punishability of the doer. On the contrary, in judging civil responsibility, the relief of victim is accounted much of on the basis of the principle of equity. So there have been some misdiagnosis cases, the physician´s criminal liability being denied, but his civil responsibility admitted.
Misdiagnosis is a problem of negligence in the content of diagnosis, therefore it comes under the general thoery of criminal negligence.
Due care in medical practice includes duty to anticipation of bad result and duty to avoidance of bad result. If a physician´s lack of due care in diagnosis caused the bad result of his patient, he should be punishable.
The standard of due care in diagnosis lies on that of an average physician, a specialist in the field of the medical treatment to put it concretely.
To judge medical malpractice in diagnosis, the standards of medical science, the discretionary power of phycian and circumstances of medical care should be considered.
If a physician´s misdiagnosis was irresistible, he would be exempted from criminal liability. However, any physician cannot escape from crininal liability only because of the patient´s idiosyncracy. He should be as cautious and circumspect as could be in finding out the idiosyncracy through the medical interview.
|