Lawyer

Chapter 823 One Year

Fang Yi went on to express his defense opinion: "In this case, Chu Guang first formulated some traditional Chinese medicines into capsules and sold them to specific patients according to his own formula in his clinic. Although these capsules were also sold to patients, they were only It's done on a very small scale for specific patients who come to see you.

The drug prescribed by the defendant was for diagnosis and treatment, not simply an act of public sale to the public. The quantity, scale and scope of its production and sales were far from reaching the level of entering the circulation field of the drug market.

That is to say, the behavior of the defendant is not enough to disrupt the order of the market economy, and the behavior of the defendant does not belong to the "production and sales" behavior in the crime of producing and selling counterfeit medicines.

[-]. The defendant produced and sold medicines based on folk prescriptions and folk prescriptions, and there was no subjective intention to produce counterfeit medicines.

The crime of producing and selling counterfeit medicines is an intentional crime, and the perpetrator must knowingly produce and sell counterfeit medicines subjectively to constitute this crime.If the perpetrator does not know or is subjectively unaware that the medicines he produces and sells are counterfeit medicines, it does not constitute criminal intent.

Folk prescriptions and folk prescriptions are prescriptions or treatment methods that have been passed down among the people. They often have a relatively long history of inheritance and a relatively broad mass base, which is why they have been passed down to this day.

Folk proven prescriptions and folk remedies, especially in the vast rural areas, have a certain basis for existence. Many people, whether they are practitioners or patients, have the idea of ​​"folk remedies for serious diseases", and they do not regard folk remedies and proven prescriptions as counterfeit medicines.

The defender believes that for such a complicated social problem, criminal means cannot be simply used to sanction it, otherwise it will violate the spirit of modesty in the criminal law.

The defendant in this case obtained the prescription from an old professor during his medical school studies, and this way of obtaining the prescription itself would give him a certain inner confirmation of the effect of the prescription.

Since then, the defendant has used the prescription in clinic in the process of practicing medicine, and no adverse reaction has been seen, which makes him more convinced of the efficacy of the prescription.

In the process of the defendant's diagnosis and treatment for the victim, the defendant also increased the dose after the medication became effective, which in turn caused the victim's death from poisoning.

Looking at the whole case, although the defendant produced and sold the drug without obtaining approval in accordance with the relevant regulations, he did not subjectively believe that the drug he produced and sold was a counterfeit drug, and he always firmly believed that the drug would not harm the victim. cause some damages.Therefore, the defendant did not have the subjective intention of producing and selling counterfeit medicines.

[-]. The behavior of the defendant in this case conforms to the characteristics of the crime of medical malpractice and should be punished as such.

Article 335 of the "Criminal Law" stipulates that medical personnel who, due to serious irresponsibility, cause the death of the patient or seriously damage the health of the patient shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.The behavior of the defendant Chu Guangxian in this case conforms to the basic characteristics of the crime of medical malpractice:
First of all, Chu Guangxian is a doctor in a clinic, has the qualifications and license to practice medicine as a doctor, and is a professional medical personnel who has obtained the qualifications of a medical practitioner and has been registered to practice in accordance with the law. Relevant regulations belong to medical personnel.

Secondly, as a doctor, the defendant, Chu Guangxian, in the process of legal diagnosis and treatment, did not obtain the approval of the national health administrative department to prepare medicines for diagnosis and treatment without authorization, seriously violating medical regulations, and causing serious consequences such as the death of the patient.

The crime of medical malpractice is a crime of negligence, which includes negligence and overconfidence.

In this case, the defendant Chu Guangxian has professional medical knowledge and rich experience in diagnosis and treatment, and is a professional medical staff.

In the process of taking the medicine, he did not let the victim take a large amount of medicine at the beginning, but gradually increased the dosage, which shows that he has a certain understanding of the toxic and side effects of the medicine.

However, after long-term clinical use and the victim's own small-dose trial, he did not see any obvious adverse reactions, and it did have a certain curative effect, so he relaxed his vigilance, believing that the drug would not cause harm to the victim, and then The increased dose was given to the victim, which eventually led to his death. The defendant's mentality should be attributed to the fault of overconfidence.

In addition, objectively, the defendant, Chu Guangxian, as an individual physician, practiced in accordance with the registered practice location, practice category, and practice scope, and engaged in corresponding medical services. , The drug prepared without permission caused the death of the patient, which is a serious irresponsible performance, and it also completely conforms to the characteristics of the crime of medical malpractice in the objective aspect.

To sum up, the defender believes that the behavior of the defendant Chu Guangxian in this case should constitute the crime of medical malpractice. In view of his good attitude of pleading guilty and showing remorse, he actively rescued the victim after the incident, surrendered himself, and compensated the family members of the victim. , recommending that the court give him a lenient punishment and sentence him to six months in prison.complete. "

Fang Yi’s suggestion of the sentence was discussed with Chu Hua and his mother. The defendant Chu Guang first used folk prescriptions to diagnose and treat patients in violation of regulations, which eventually led to the death of the patient. This is a fact. It is obviously unrealistic to suggest that the court sentence the defendant to criminal detention. Therefore, the final recommended sentence is six months in prison.

……

After the trial was completed, the presiding judge pronounced the verdict soon.

The county court held that the defendant, Chu Guang, used private prescriptions to prepare capsules for patients to take. His intention was to treat patients and hoped to have therapeutic effects.Apparently the defendant did not think it was a counterfeit medicine, so the behavior of the defendant Chu Guangxian did not constitute the crime of producing and selling counterfeit medicines.

However, as a medical worker, Chu Guangxian secretly prepared capsules containing the toxic substance "aconitine" and increased the dosage during diagnosis and treatment, resulting in the death of Lan Zhenguo from poisoning. His behavior constituted a crime of medical malpractice.

Considering that Chu Guangxian had actively rescued the victim, surrendered himself, and actively compensated the victim for economic losses, according to the provisions of Article 335 of the Criminal Law and the first paragraph of Article No. 60, the defendant Chu Guangxian was sentenced to one year's imprisonment .

After the criminal judgment was issued, the defendant did not appeal and the procuratorate did not protest, and the judgment took effect.This case is considered closed, of course, this is all for later.

"Master, what do you think of the sentence imposed by the county court today?" Yun Qiao asked while driving.

"Although we didn't adopt our sentencing suggestion, it was expected. What do you think?" Fang Yi sat in the passenger seat, turned his head and asked.

"The defendant surrendered himself. Although he didn't get a letter of understanding, he actively compensated the victim's family... I think the sentence is a bit long, and the sentence should be lowered." Yun Qiao said self-consciously.

(End of this chapter)