Fang Yi then issued a defense opinion: "In this case, Chu Guang first prepared some traditional Chinese medicine into capsules in his own clinic according to his own formula and sold them to specific patients for treatment, although these capsules were also sold to patients, but after all, they were only carried out in a very small and specific range for specific patients who came to see a doctor.

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

In other words, the defendant's conduct was not sufficient to undermine the order of the market economy, and the defendant's conduct did not fall under the 'production and sale' of the crime of producing and selling counterfeit drugs.

2. The defendant produced and sold drugs based on private prescriptions and home remedies, and did not have the intention to subjectively produce counterfeit drugs.

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

Folk prescription and home remedy are a kind of prescription or treatment method that has been circulated among the people, which often has a relatively long historical inheritance and a broader mass base, which is also the reason for the spread to this day.

Folk prescriptions and home remedies, especially in the vast rural areas, have a certain basis for existence, and many people, whether they are practitioners or patients, have the idea of 'home remedies to cure serious diseases', and do not regard home remedies and prescriptions as fake medicines.

The defender believes that for such a complex social problem, it is not possible to simply use criminal punishment to punish it, otherwise it will violate the spirit of moderation of the criminal law.

The defendant in this case obtained the prescription from an old professor while studying at a medical school, and this access itself would have given him a certain degree of inner confirmation of the effect of the prescription.

Subsequently, in the course of practicing medicine, the defendant had used the prescription in clinical practice and had no adverse reactions, which made him even more convinced of the efficacy of the prescription.

In the course of the defendant's diagnosis and treatment of the victim, the defendant also increased the dose only after the medication had taken effect, which in turn led to the victim's death from poisoning.

Looking at the case as a whole, although the defendant produced and sold the drug without obtaining approval in accordance with the relevant regulations, he subjectively did not believe that the drug he produced and sold was a counterfeit drug, and always firmly believed that the drug would not cause harm to the victim. Therefore, the defendant did not have the subjective intent to produce or sell counterfeit drugs.

3. The conduct of the defendant in this case meets the characteristics of the crime of medical malpractice and should be punished as this crime.

Article 335 of the Criminal Law stipulates that a medical worker who, due to serious irresponsibility, causes the death of a patient or seriously harms the health of a patient, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. The conduct of the defendant in this case, Chu Guangxian, meets the basic characteristics of the crime of medical malpractice:

First of all, Chu Guangxian is a clinic physician, with the qualifications and practice license of a physician, and is a professional medical personnel who have obtained the qualification of a licensed physician in accordance with the law and has been registered to practice, and his identity meets the relevant provisions of the "Law of the People's Republic of China on Medical Practitioners" on the qualifications of medical practitioners, and belongs to medical personnel.

Second, the defendant Chu Guangxian, as a physician, prepared drugs for diagnosis and treatment without the approval of the national health administrative department in the course of his lawful diagnosis and treatment, which seriously violated medical regulations and caused the serious consequences of the patient's death.

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

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

In the process of taking the drug, he did not let the victim take a large amount of the drug at the beginning, but gradually increased the dosage of the drug, indicating that he had a certain understanding of the toxic side effects of the drug.

However, after long-term clinical use and the victim's own small-dose trial, he did not see any obvious adverse reactions, and there was indeed a certain curative effect, so he relaxed his vigilance in this regard, credulously believing that the drug would not cause harm to the victim, and then increased the dose to the victim, which eventually led to his death.

In addition, in the objective aspect, the defendant Chu Guangxian, as an individual physician, practiced in accordance with the registered practice location, practice type, and scope of practice, engaged in the corresponding medical business, and in the process, used drugs prepared by the victim without the approval of the state health administrative department, causing the death of the patient, which is a manifestation of serious irresponsibility, and objectively also fully meets the characteristics of the crime of medical malpractice.

To sum up, the defender believes that the defendant Chu Guangxian's conduct in this case should constitute the crime of medical malpractice, and in view of his good attitude in admitting guilt and showing remorse, actively rescuing the victim after the incident, surrendering himself, and compensating the victim's family, it is recommended that the court give him a lenient punishment and sentence him to six months imprisonment. Complete. ”

Fang Yi's recommendation of the sentence was discussed with Chu Hua and his mother, and the defendant Chu Guangxian used folk medicine prescriptions to diagnose and treat the patient in violation of regulations, which eventually led to the death of the patient, which is a fact, and it is obviously unrealistic to recommend that the court sentence the defendant to criminal detention, so the final recommended sentence is six months imprisonment.

……

Soon after the trial was completed, the presiding judge pronounced the verdict.

The county court held that the defendant Chu Guang first used a folk prescription to prepare capsules for the patient to take, and his intention was to treat the patient's illness and hope to have a therapeutic effect. Obviously, the defendant did not believe that it was a counterfeit drug, so the defendant Chu Guangxian's conduct did not constitute the crime of producing and selling counterfeit drugs.

However, Chu Guang, as a medical worker, privately prepared capsules containing the toxic substance "aconitine", and increased the dose during diagnosis and treatment, causing Lan Zhenguo to die of poisoning, and his behavior constituted the crime of medical malpractice.

Considering that Chu Guangxian actively rescued the victims, surrendered himself, and actively compensated the victims for their economic losses, the defendant Chu Guangxian was sentenced to one year imprisonment in accordance with the provisions of article 335 and article 67, paragraph 1 of the Criminal Law.

After the criminal verdict was issued, the defendant did not appeal, and the procuratorate did not raise a counter-appeal, and the verdict took effect. This case is closed, of course, this is all a later story.

"Master, what do you think of the sentence imposed by the county court today?" Yun Qiao asked as he drove the car.

"Although our sentencing recommendation was not adopted, it was expected. What do you think? Fang Yi sat in the passenger seat, turned his head and asked.

"The defendant voluntarily surrendered, and although he did not receive a letter of understanding, he actively compensated the victim's family...... I think this sentence is a bit long, and the sentence should be lowered even further. Yun Qiao said to himself.

(End of chapter)