美国无过错医疗责任改革：制度缘起与法理启示
发布时间：2019-02-12 09:04
【摘要】： 无过错医疗责任是美国为应对职业过失责任保险危机而开展的一项重大医疗责任制度改革。自20世纪70年代以来,随着美国国内医疗伤害的不断增多,患者索赔案件不仅在数量上明显上升,而且,诉讼所导致的医疗成本、法律成本和保险成本亦随之大幅攀升。在预防和赔偿医疗伤害方面,既有的医疗失职法捉襟见肘,由此最终衍生出了三次职业过失责任保险危机。第一次诉讼危机爆发后,美国的州和联邦相继出台了一系列侵权法改革措施,但是,这些侵权法改革措施因其过多地限制了患者的诉讼权利、增加了患者的胜诉难度、却无助于医疗质量的提高而备受争议。回眸此次侵权法改革,它被认为无力应对危机,更无力从根本上化解其内在的矛盾,也就是说,只要赔偿责任依然建立于认定过错的基础之上,就必然导致医生为了避免诉讼或是在面临诉讼而提出抗辩时,倾向于隐瞒或否认自己的医疗过失,致使可在今后加以避免的医疗伤害不断重复出现；此外,既有的过错认定形式,也导致了众多患者因意识不到或无力证明过错而无法获得赔偿或充分赔偿。 正是基于上述背景,无过错医疗责任改革的呼声浮出水面。所谓无过错模式,是指患者若遭受医疗所致之严重伤残,有权从赔偿基金或者其他组织获得医疗赔偿而无须证明医疗机构或医务人员实施的医疗行为存有过失的一种赔偿模式。该模式集中关注患者安全以及公平和及时的赔偿等方面的问题,并对这些问题进行了深入而持久的讨论。该领域的倡导者们认为,将患者获取医疗赔偿的责任基础从传统侵权法模式的过错责任,变革为非侵权法模式的无过错责任,能够有效地突破既有侵权法医疗责任领域的内在困境,从而有效地帮助更多的患者获得法律救济,能够有效地突破侵权法模式在当下所面临的有限资源不合理耗费、重复赔偿以及社会正义等层面的问题,从而具有降低法律实施成本、提高医疗服务质量以及化解医患矛盾等制度功效。在其制度设计中,无过错医疗责任改革回应了侵权法以及侵权法改革无力应对的诸多问题。例如,在制度目标方面,兼顾患者的利益维护与患者的安全保障；在制度建构方面,兼顾医患双方的利益平衡,以更加积极的制度性举措关注医疗质量的提高和医疗伤害的预防。此外,无过错医疗责任改革将责任基础转换为患者的医疗效果而非医疗程序,亦避免了侵权法模式所引发的诉讼成本高昂等问题,有助于将节省下来的法律实施成本用于为更多的患者提供赔偿,从而得以更加广泛地增进社会福祉。在美国学者的积极倡导下,无过错医疗责任改革最终在美国的弗吉尼亚州和佛罗里达州迈出了制度实践的第一步,这两个州的改革为全面系统地推行无过错医疗责任制度积累了理论和制度经验。近年来,弗吉尼亚州和佛罗里达州一直努力扩大无过错的适用范围,而美国其他各州亦随之密切观察着这两个州的制度运行状况,并正在着手制定本州的无过错医疗责任法。 本文立足于美国近半个世纪以来医疗责任领域危机与变革的内在逻辑,对无过错医疗责任制度的思想基础、经验基础和制度举措进行了全面梳理。研究之目的,旨在全面阐释医疗责任危机形成与演变的内在逻辑,深入检视无过错医疗改革的思想基础、经验基础和制度成果,从中探寻理论与制度两个层面的借鉴价值,为当代中国的医疗责任制度改革提供法理与制度启示。
[Abstract]:The non-fault medical liability is a major medical responsibility system reform in the United States to deal with the occupational negligence liability insurance crisis. Since the 1970s, with the increasing number of medical injuries in the United States, the number of patients' claim cases has not only increased significantly, but also the medical costs, legal costs and insurance costs resulting from the litigation have also increased significantly. In the aspect of prevention and compensation for medical injury, the existing medical negligence law is overstretched, and the third professional fault liability insurance crisis is finally derived. After the first litigation crisis, the state and the state of the United States have successively introduced a series of measures of tort law reform. However, the reform measures of these tort law have limited the patient's right of litigation, and the difficulty of the success of the patient's success is not conducive to the improvement of the quality of the medical treatment. Looking back on the reform of the tort law, it is thought to be unable to deal with the crisis and can't solve the contradiction fundamentally, that is, as long as the liability of the compensation is still established on the basis of finding fault, the doctor will inevitably lead to the doctor to avoid the lawsuit or to make a defense in the face of the lawsuit. The tendency to conceal or deny the medical negligence of one's own causes the repeated occurrence of medical harm that can be avoided in the future; in addition, the existing fault-finding form has also led to a large number of patients unable to obtain compensation or adequate compensation for lack of awareness or inability to prove the fault. It is based on the above-mentioned background, the call of no-fault medical responsibility reform is floating The so-called no-fault pattern means that the patient is entitled to obtain medical compensation from the compensation fund or other organization without proof of the negligence of the medical treatment performed by the medical institution or the medical staff if the patient is seriously disabled due to medical treatment. The model focuses on issues related to the safety of the patient, as well as fair and timely compensation, and has made an in-depth and lasting solution to these issues The advocates of this field believe that the basis of the responsibility of the patient to obtain the medical compensation is from the over-fault of the traditional tort law model, the change is the non-infringing act mode, it can effectively break through the existing tort law medical responsibility field In a difficult situation, it can effectively help more patients to obtain legal remedies, and can effectively break through the problems of unreasonable consumption of limited resources, repeated compensation and social justice at present in the tort law mode, so as to have the effect of reducing the law The cost of application, the improvement of medical service quality and the solution of the contradiction of doctor-patient and the like In its system design, the reform of no-fault medical responsibility has responded to the tort law and the failure to cope with the reform of the tort law. Multi-problems. For example, in terms of system objectives, the interests of patients should be taken into account, and the safety and safety of the patients should be taken into consideration; in the aspect of system construction, the interests of both patients and patients should be balanced, and more active institutional measures will be taken to pay attention to the improvement of medical quality and medical injury Prevention. In addition, no-fault medical responsibility reform transforms the responsibility base into the patient's medical effect rather than the medical procedure, and also avoids the high cost of litigation caused by the model of tort law, and helps to raise the cost of the saved legal implementation cost to more patients for compensation, so that it can be more widely promoted It is well-being. Under the active promotion of American scholars, the reform of no-fault medical responsibility has taken the first step in the system practice in Virginia and Florida in the United States. The reform of these two states has accumulated the theory and system of the system of non-fault medical responsibility in a comprehensive and systematic way. In recent years, Virginia and Florida have been working to expand the scope of the no-fault, while other states in the United States have followed closely the system health of the two states and are working to develop the state's no-fault medical treatment. The article is based on the internal logic of the crisis and change in the field of medical responsibility since the last half century of the United States, and the ideological foundation, the experience base and the system initiative of the system of no-fault medical responsibility. The purpose of the study is to fully explain the internal logic of the formation and evolution of the crisis of medical responsibility, and to examine the ideological foundation, the experience base and the system result of the non-fault medical reform. The reference value of the level is to provide the reform of China's medical responsibility system
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D971.2;DD912.1
本文编号：2420280
[Abstract]:The non-fault medical liability is a major medical responsibility system reform in the United States to deal with the occupational negligence liability insurance crisis. Since the 1970s, with the increasing number of medical injuries in the United States, the number of patients' claim cases has not only increased significantly, but also the medical costs, legal costs and insurance costs resulting from the litigation have also increased significantly. In the aspect of prevention and compensation for medical injury, the existing medical negligence law is overstretched, and the third professional fault liability insurance crisis is finally derived. After the first litigation crisis, the state and the state of the United States have successively introduced a series of measures of tort law reform. However, the reform measures of these tort law have limited the patient's right of litigation, and the difficulty of the success of the patient's success is not conducive to the improvement of the quality of the medical treatment. Looking back on the reform of the tort law, it is thought to be unable to deal with the crisis and can't solve the contradiction fundamentally, that is, as long as the liability of the compensation is still established on the basis of finding fault, the doctor will inevitably lead to the doctor to avoid the lawsuit or to make a defense in the face of the lawsuit. The tendency to conceal or deny the medical negligence of one's own causes the repeated occurrence of medical harm that can be avoided in the future; in addition, the existing fault-finding form has also led to a large number of patients unable to obtain compensation or adequate compensation for lack of awareness or inability to prove the fault. It is based on the above-mentioned background, the call of no-fault medical responsibility reform is floating The so-called no-fault pattern means that the patient is entitled to obtain medical compensation from the compensation fund or other organization without proof of the negligence of the medical treatment performed by the medical institution or the medical staff if the patient is seriously disabled due to medical treatment. The model focuses on issues related to the safety of the patient, as well as fair and timely compensation, and has made an in-depth and lasting solution to these issues The advocates of this field believe that the basis of the responsibility of the patient to obtain the medical compensation is from the over-fault of the traditional tort law model, the change is the non-infringing act mode, it can effectively break through the existing tort law medical responsibility field In a difficult situation, it can effectively help more patients to obtain legal remedies, and can effectively break through the problems of unreasonable consumption of limited resources, repeated compensation and social justice at present in the tort law mode, so as to have the effect of reducing the law The cost of application, the improvement of medical service quality and the solution of the contradiction of doctor-patient and the like In its system design, the reform of no-fault medical responsibility has responded to the tort law and the failure to cope with the reform of the tort law. Multi-problems. For example, in terms of system objectives, the interests of patients should be taken into account, and the safety and safety of the patients should be taken into consideration; in the aspect of system construction, the interests of both patients and patients should be balanced, and more active institutional measures will be taken to pay attention to the improvement of medical quality and medical injury Prevention. In addition, no-fault medical responsibility reform transforms the responsibility base into the patient's medical effect rather than the medical procedure, and also avoids the high cost of litigation caused by the model of tort law, and helps to raise the cost of the saved legal implementation cost to more patients for compensation, so that it can be more widely promoted It is well-being. Under the active promotion of American scholars, the reform of no-fault medical responsibility has taken the first step in the system practice in Virginia and Florida in the United States. The reform of these two states has accumulated the theory and system of the system of non-fault medical responsibility in a comprehensive and systematic way. In recent years, Virginia and Florida have been working to expand the scope of the no-fault, while other states in the United States have followed closely the system health of the two states and are working to develop the state's no-fault medical treatment. The article is based on the internal logic of the crisis and change in the field of medical responsibility since the last half century of the United States, and the ideological foundation, the experience base and the system initiative of the system of no-fault medical responsibility. The purpose of the study is to fully explain the internal logic of the formation and evolution of the crisis of medical responsibility, and to examine the ideological foundation, the experience base and the system result of the non-fault medical reform. The reference value of the level is to provide the reform of China's medical responsibility system
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D971.2;DD912.1
【参考文献】
相关期刊论文 前1条
1 刘士国;论无过错责任[J];法学研究;1994年05期
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