过度医疗侵权责任法律适用研究

发布时间：2018-05-08 17:46

本文选题：过度医疗 + 侵权责任　；参考：《西南大学》2013年硕士论文

【摘要】：过度医疗行为是一种在医疗活动中普遍而长期存在的不法行为,《中国人民共和国侵权责任法》(以下简称《侵权责任法》)第一次对过度医疗行为进行了明确的规定。但是,该法仍然存在着各种问题,例如仅对过度检查有明文规制、缺乏过错认定权威标准、被侵权人诉讼负担过大、被侵权人维权动力不足等。针对上述问题,学界对完善《侵权责任法》过度医疗侵权行为提出了不少建议。有学者建议尽快进行法律修改或司法解释,以使《侵权责任法》能够明示地规制所有的过度医疗行为；也有学者认为由于《侵权责任法》存在对过度医疗行为规制并不全面、归责原则适用困难等问题,还不如通过对相关法律法规中有关过度医疗侵权行为进行有效调整。但是笔者认为,这些都是对《侵权责任法》一定程度上的误读,要有效地解决《侵权责任法》在立法和实践中所存在的问题,并以此来推动我国过度医疗侵权行为的立法进步,我们应当立足于现有的法律现状,对其进行合理而灵活的解释、修正和适用。第一部分,过度医疗侵权基本理论概说。本部分主要对过度医疗的概念和构成两个方面进行一定的论述,阐明过度医疗的相关基本理论,通过对这些理论的介绍来明确对过度医疗行为进行有效、准确地规制所需要注意的问题。第二部分,过度医疗侵权责任之法律适用现状及其不足。该部分首先采用与过去立法对比的方式,阐明了我国现行的《侵权责任法》对过度医疗侵权行为进行规制的基本规定,包括：《侵权责任法》能够依法调整所有的过度医疗侵权行为；过度医疗侵权行为仅适用过错责任原则；医疗机构一方的抗辩和免责事由主要有医疗机构一方没有违反相关诊疗规范,医方尽到了说明和告知义务,医疗损害是由患者一方的原因所造成的等；赔偿范围包括财产、人身损害赔偿以及精神损害赔偿。然后,该部分提出了《侵权责任法》所存的三个缺陷：第一,现行的《侵权责任法》第63条仅禁止了过度检查这一种过度医疗侵权行为,这样的立法行为反而使得实践中医患双方都对其他的过度医疗侵权行为不太重视,这就使得《侵权责任法》规制所有过度医疗侵权行为的立法本意落空。第二,《侵权责任法》存在归责原则不够完善的问题,这主要包括法律所规定的损害和过错的概念不清,导致被侵权人无法在实践中清楚的认识何为过度医疗侵权中的损害和过错；依法作为过错认定标准的诊疗规范由于没有法律的授权而不够权威,无法成为判断过度医疗侵权过错的标准；《侵权责任法》规制过度医疗侵权仅适用过错责任原则,这虽然可以缓解医疗机构过分担心诉讼风险的问题,降低其进行防御性医疗的可能,但过错责任原则却实际加重了被侵权人的负担,有偏袒医方利益的嫌疑。第三,在现有医疗保险制度下,医疗保险机构仅对门诊和住院费用报销申请进行形式审查,这就使得就医人员一方认为即使发生了过度医疗侵权,这种侵权行为对自身所产生的损害也是比较小的,因而就医人员宁可采取忍让的态度,也不愿与医疗机构一方产生过大矛盾而耽误治疗,这就势必会导致《侵权责任法》难以有效地规制过度医疗侵权行为。第三部分,《侵权责任法》规制过度医疗侵权的完善建议。本部分对《侵权责任法》在规制过度医疗侵权行为中所存在的不足提出了以下的具体建议：第一,对《侵权责任法》第54条进行司法解释,明示该法对过度医疗侵权行为的全面规制,这样的做法可以回避对第63条进行立法修改所必须经历的繁杂而冗长的立法修改过程,也可以避免对第63条进行扩大解释有违立法意图之嫌疑的问题。第二,通过立法和司法手段完善归责原则。主要包括将损害界定为超出了“平均标准”而支付的医疗费用或遭受的身体损害,将过错界定为缺乏医疗资料记载的合理医学判断仍进行不必要的诊疗活动,在此基础上,通过案例指导的方式将这些内容进行一定程度的公示,以帮助归责原则的具体实践；通过立法来明确授权专门的机构编纂权威的诊疗规范,并在此基础上将该诊疗规范在全国范围内推广,指导过度医疗侵权的过错认定；引入举证责任缓和制度,举证责任缓和制度不同于过错推定原则,它并不会在事前就硬性的规定医疗机构与就医人员双方之间对过错的认定责任(过错推定原则还改变了过错责任原则的过错认定责任分配),它是在事中合理的分配双方之间的责任,以此来确保过错责任原则之适用既不会使医疗机构过于担心诉讼风险,也不使就医人员的诉讼负担过于沉重。第三,完善医保制度和《侵权责任法》的衔接。首先,通过专门制度的构建,让医疗保险机构对门诊和住院费用报销的申请进行一定的实质审查,以此来有效地识别过度医疗侵权行为；其次,如果医疗保险机构审查出报销申请中存在过度医疗侵权行为,则其必须依法对审查的内容进行说明,并要求医疗机构就其不存在过度医疗侵权行为进行一定的说明；最后,上述的说明都可以作为被侵权人提起诉讼的有力证据。
[Abstract]:Excessive medical behavior is a common and long-standing misconduct in medical activities. The tort liability law of the people's Republic of China (hereinafter referred to as the tort liability law) is the first to make a clear regulation of excessive medical behavior. However, there are still various problems, for example, there are only clear regulations and lack of fault for overchecking. In view of the above problems, the academic circles put forward a lot of suggestions on perfecting the tort liability law and the excessive medical tort, and some scholars suggest that the legal amendment or judicial interpretation should be carried out as soon as possible so as to enable the "power and responsibility law" to clearly regulate all excessive medicine. As a result, the author believes that these are misunderstandings to the tort liability law to a certain extent, because the "tort liability law" is not fully regulated and the application of the principle of imputation is difficult to be adjusted effectively by the relevant laws and regulations. In order to effectively solve the problems existing in the law of tort liability in the legislation and practice, and in order to promote the legislative progress of our country's excessive medical tort, we should be based on the existing legal status and make a reasonable and flexible explanation to it, and to amend and apply it.
The first part is a general introduction to the basic theory of excessive medical tort. This part mainly discusses the concept and composition of over medical treatment in two aspects, clarifies the basic theories of excessive medical treatment, and through the introduction of these theories to make clear the effectiveness of excessive medical behavior, and accurately regulate the problems needed to be paid attention to.
The second part, the current situation and shortcomings of the legal application of over medical tort liability. This part firstly uses the way of comparison with the past legislation to clarify the basic regulations of the current tort liability law of China on the regulation of excessive medical tort, including: the tort liability law can adjust all over medical Torts according to law; Excessive medical tort is only applicable to the principle of liability for fault; the defense and exemption of one party of the medical institution mainly have the medical institution one party does not violate the relevant diagnosis and treatment norms, the medical party has done the explanation and the notification obligation, the medical damage is caused by the reason of the patient one party; the compensation scope includes property, personal injury compensation and Then, this part puts forward three defects in the tort liability law: first, the current "tort liability law" and the sixty-third article only prohibit excessive inspection of this kind of excessive medical tort, which makes the practice of Chinese doctors and patients do not pay much attention to his excessive medical tort. The legislative original intention of "tort liability law" to regulate all over medical torts is lost. Second, < tort liability law > is not perfect for the principle of imputation, which mainly includes the unclear concept of damage and fault stipulated in the law, which leads to the inability of the infringed to know clearly in the practice of the damage and over the excessive medical tort. Wrong; the standard of diagnosis and treatment in accordance with the law, as the standard of fault identification, can not be the standard for judging the fault of excessive medical tort because there is no legal authorization, and the tort liability law is only applicable to the principle of fault liability, which can alleviate the problem of excessive concern for the risk of litigation by medical institutions and reduce its progress. The possibility of defensive medical care is possible, but the principle of fault liability actually aggravates the burden of the infringed and has the suspicion of favouring the interests of the doctors. Third, under the existing medical insurance system, the medical insurance institutions only examine the application for reimbursement for outpatient and hospitalization expenses, which makes the medical staff think that even if there is an excessive medical invasion. Right, this kind of tort has little damage to itself, so the medical staff would rather take the attitude of forbearance, and do not want to delay the treatment with the medical institution, which will lead to the tort liability law, which is difficult to effectively regulate the excessive medical treatment.
The third part, < tort liability law > regulations for the regulation of excessive medical tort. This part puts forward the following specific suggestions on the shortcomings of the tort liability law in the regulation of excessive medical tort: first, the judicial interpretation of the fifty-fourth articles on the tort liability law, and the comprehensive regulation of the law on excessive medical tort It can avoid the complicated and lengthy legislative revision that must be experienced in the legislative revision of the sixty-third articles, and also avoid the question of the suspicion that the sixty-third article should be expanded to explain the legal picture. Second, through legislative and judicial means, the principle of imputation is perfected. The main inclusion of the damage is to define the damage as beyond the "average standard". While the medical expenses paid or the physical damage suffered, the fault is defined as the irrational medical judgment which is not recorded by the medical data, and on this basis, the contents are given to a certain extent by the way of case guidance to help the concrete practice of the principle of imputation, and to make clear authorization through legislation. Specialized agencies compiling authoritative diagnosis and treatment norms, and promoting the diagnosis and treatment norms throughout the country on this basis, guiding the fault identification of excessive medical tort; introducing the system of burden of proof mitigation, the system of burden of proof is different from the principle of presumption of fault, and it does not stipulate both medical institutions and medical personnel before the matter. The responsibility for identifying the fault between the parties (the principle of presumption of fault also changes the allocation of fault identification responsibility of the fault liability principle), it is reasonable to allocate the responsibility between the two parties in order to ensure that the application of the principle of fault liability does not cause the medical institution to worry too much about the litigation risk, nor does it make the medical staff too heavy on the burden of litigation. Third, improve the connection between the medical insurance system and the tort liability law. First, through the construction of a special system, the medical insurance institutions have a certain substantive review of the application for reimbursement for outpatient and hospitalization expenses, in order to effectively identify the excessive medical tort; secondly, the medical insurance agency has examined the existence of a reimbursement application. It is necessary to explain the contents of the examination according to law, and require the medical institutions to give a certain description of the non existence of excessive medical tort. Finally, the above description can be used as a powerful evidence for the infringers to bring a lawsuit.

【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923

【参考文献】