从李笑笑案论医疗损害赔偿责任的认定
发布时间：2018-07-24 16:52
【摘要】：在我国经济发展的浪潮中,人们生活水平日益提高,健康问题越来越不可忽视,但是医疗行业的特殊性使得医患纠纷的数量逐年上升,医疗损害作为一种侵权行为,我国法律的规定不够完善,在司法实践中更是难以操作,2007年新《侵权责任法》的颁布,虽然在一定程度弥补了之前的缺陷,但是还存在不足的方面。笔者从以案例入手,对案例中涉及的法律问题作了详细的阐述,分为三部分,第一章列举了案例,以医患双方的争议焦点为切入点,对案例进行了法理分析,剖析了案例中涉及的法律理论。第二章对医疗损害纠纷的概念、特点进行了梳理,分析了医疗纠纷的发展现状,重点对医疗损害责任的构成要件、归责原则以及举证责任作了详细阐述。构成要件有的学者主张“三要件”之说,也有的学者主张“四要件”之说,但笔者认为“四要件”较合理：即患者在医疗机构的诊疗活动中受到损害、医疗机构和医务人员的诊疗行为、医疗机构和医务人员存在过错、诊疗行为与患者受到的损害之间存在因果关系。过错推定原则、过错原则及无过错原则三个归责原则为侵权责任法中规定的。第三章运用比较方法研究了我国和外国的不同,提出了几点完善我国医疗损害赔偿制度的建议,通过分散医疗风险来平衡医患双方,使医疗事业获得长远的发展。要不断的从各个方面研究医疗纠纷案件的合理解决,及时有效的维护医患双方的合法权益,公民期盼着和谐医患关系的构建,这一需求也同样满足了国家建设和谐社会的总要求。
[Abstract]:In the tide of economic development in our country, people's living standard is improving day by day, and health problems can't be ignored more and more, but the particularity of medical industry makes the number of doctor-patient disputes rise year by year, medical damage is a kind of tort. The law of our country is not perfect enough, and it is more difficult to operate in the judicial practice. The promulgation of the new Tort liability Law in 2007 has made up for the defects in the past to a certain extent, but there are still some deficiencies. Starting with the case, the author expounds the legal problems involved in the case in detail, which is divided into three parts. The first chapter enumerates the cases, taking the focus of the dispute between doctors and patients as the starting point, carries on the legal theory analysis to the case. The legal theory involved in the case is analyzed. The second chapter combs the concept and characteristics of medical injury dispute, analyzes the current development of medical dispute, focuses on the constitutive elements of medical injury liability, the principle of liability and the burden of proof. Some scholars advocate the theory of "three elements" and some scholars advocate the theory of "four elements". However, the author thinks that the "four elements" are more reasonable: that is, the patient is injured in the diagnosis and treatment activities of the medical institution. The diagnosis and treatment behavior of medical institutions and medical personnel, the fault of medical institutions and medical personnel, and the causality between the diagnosis and treatment behavior and the damage suffered by patients. The principle of presumption of fault, the principle of fault and the principle of no fault are three principles of liability in tort law. The third chapter studies the differences between China and foreign countries by means of comparative method, and puts forward some suggestions to perfect the system of medical damage compensation in China, to balance the medical risk between the doctors and the patients through dispersing the medical risks, and to make the medical cause obtain the long-term development. To constantly study the reasonable solution of medical dispute cases from various aspects, to safeguard the legitimate rights and interests of both doctors and patients in a timely and effective manner, citizens are looking forward to the construction of a harmonious doctor-patient relationship. This demand has also met the country's overall requirements for building a harmonious society.
【学位授予单位】：西北大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D920.5;D923
本文编号：2142025
[Abstract]:In the tide of economic development in our country, people's living standard is improving day by day, and health problems can't be ignored more and more, but the particularity of medical industry makes the number of doctor-patient disputes rise year by year, medical damage is a kind of tort. The law of our country is not perfect enough, and it is more difficult to operate in the judicial practice. The promulgation of the new Tort liability Law in 2007 has made up for the defects in the past to a certain extent, but there are still some deficiencies. Starting with the case, the author expounds the legal problems involved in the case in detail, which is divided into three parts. The first chapter enumerates the cases, taking the focus of the dispute between doctors and patients as the starting point, carries on the legal theory analysis to the case. The legal theory involved in the case is analyzed. The second chapter combs the concept and characteristics of medical injury dispute, analyzes the current development of medical dispute, focuses on the constitutive elements of medical injury liability, the principle of liability and the burden of proof. Some scholars advocate the theory of "three elements" and some scholars advocate the theory of "four elements". However, the author thinks that the "four elements" are more reasonable: that is, the patient is injured in the diagnosis and treatment activities of the medical institution. The diagnosis and treatment behavior of medical institutions and medical personnel, the fault of medical institutions and medical personnel, and the causality between the diagnosis and treatment behavior and the damage suffered by patients. The principle of presumption of fault, the principle of fault and the principle of no fault are three principles of liability in tort law. The third chapter studies the differences between China and foreign countries by means of comparative method, and puts forward some suggestions to perfect the system of medical damage compensation in China, to balance the medical risk between the doctors and the patients through dispersing the medical risks, and to make the medical cause obtain the long-term development. To constantly study the reasonable solution of medical dispute cases from various aspects, to safeguard the legitimate rights and interests of both doctors and patients in a timely and effective manner, citizens are looking forward to the construction of a harmonious doctor-patient relationship. This demand has also met the country's overall requirements for building a harmonious society.
【学位授予单位】：西北大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D920.5;D923
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