医疗责任保险若干法律问题研究

发布时间：2018-04-24 22:42

本文选题：医疗责任保险 + 保险责任范围　；参考：《吉林大学》2015年硕士论文

【摘要】：医疗责任保险始于19世纪，它通过引入社会化风险分担机制，能够较为有效地分散医疗风险。医疗责任保险制度与医疗侵权法律制度互相配合，作为解决医疗纠纷的机制在许多国家的实践中发挥了重要的作用。我国引入医疗责任保险至今已有二十余年的时间，然而该制度在我国的发展仍然十分缓慢。目前仅有一些地区出台了推行医疗责任保险的相关规范性文件，而全国统一的医疗责任保险制度尚未建立。在已经实施该保险的地区，由于相关制度的不完善，医疗机构投保的积极性差，保险的普及率较低，实践效果也并不理想，没有充分发挥其解决纠纷的作用。应该看到的是，我国医疗责任保险的制度设计尚不成熟，并且缺乏效力层次较高的法律法规的支持。具体而言，我国医疗责任保险制度还存在着以下一些法律问题：首先，大部分地区推行的医疗责任保险对保险主体和保险责任范围的规定过于狭隘，致使保险产品品种单一，不能充分地满足医疗机构的需求。其次，在医疗损害赔偿方面现有的法律规范之间存在冲突，具体表现为赔偿标准的不统一，对于受害人而言存在较大不公。第三，保险法的相关法律规定仍存在不完善之处，主要表现在对于第三人直接请求权规定的不完善以及缺乏对保险人抗辩义务的规定，这些不足造成了对受害第三人以及被保险人利益保护的不利影响。第四，医疗责任保险的相关配套机制尚不完善，如缺乏权威的医疗损害鉴定机构以及医疗纠纷的处理机构。最后，笔者认为在医疗责任保险领域中单纯适用过错责任存在较大的缺陷，由于受害第三人举证困难，理赔程序繁琐，医疗责任保险难以发挥及时的补偿作用。这些因素制约了医疗责任保险的进一步发展。本文认为解决医疗责任保险现有的困境，主要应从建立完善的法律制度着手。首先应当适当扩大医疗责任保险的主体范围与保险责任范围，将该保险的保护范围扩大到医疗机构的医务人员、实习医生、进修医生等。将普通医疗损害纳入医疗责任保险的保险范围之中。第二，对保险法关于第三人直接请求权的规定加以完善，使受害第三人能够更有效地行使权利保护自身的利益。第三，应当将保险人抗辩义务以法律的形式明确下来，使保险人能积极介入医疗纠纷的处理，发挥医疗责任保险风险管理与转移的功能。最后，应当借鉴域外的相关经验，探索建立无过错医疗责任保险制度，，增加医疗意外险，建立无过错医疗纠纷补偿机制。该制度可以作为医疗责任保险的有效补充，及时地弥补患者损失，对医疗纠纷的妥善解决有着积极作用。
[Abstract]:Medical liability insurance began in the 19th century. It can spread medical risk more effectively by introducing socialized risk sharing mechanism. The medical liability insurance system and the medical tort legal system cooperate with each other, as the mechanism of resolving medical disputes, it has played an important role in the practice of many countries. It has been more than 20 years since the introduction of medical liability insurance in China, however, the development of this system is still very slow in our country. At present, only some regions have issued relevant normative documents to carry out medical liability insurance, but the national unified medical liability insurance system has not been established. In the areas where the insurance has been implemented, because of the imperfection of the relevant system, the enthusiasm of medical institutions is poor, the popularization rate of insurance is low, the practical effect is not ideal, and the role of resolving disputes has not been brought into full play. It should be seen that the system of medical liability insurance in China is not yet mature and lacks the support of laws and regulations with a higher level of effectiveness. In particular, there are still some legal problems in the medical liability insurance system of our country: firstly, the provisions of the medical liability insurance carried out in most regions are too narrow on the subject of insurance and the scope of insurance liability, resulting in a single type of insurance products. It is not sufficient to meet the needs of medical institutions. Secondly, there is a conflict between the existing legal norms of medical damage compensation, which is manifested in the disunity of compensation standards, which is unfair to the victims. Third, there are still some imperfections in the relevant legal provisions of the Insurance Law, which are mainly reflected in the imperfections of the provisions on the direct claim of the third party and the lack of the provisions on the defense obligations of the insurer. These deficiencies have resulted in adverse effects on the third-party victim and the protection of the insured's interests. Fourth, the relevant supporting mechanism of medical liability insurance is not perfect, such as the lack of authoritative medical damage appraisal institutions and medical dispute handling institutions. Finally, the author thinks that in the field of medical liability insurance, the application of fault liability has great defects. Because of the difficulty of the third party to prove, the complicated procedure of claim settlement, the medical liability insurance is difficult to play a timely compensation role. These factors restrict the further development of medical liability insurance. In this paper, the author thinks that to solve the existing dilemma of medical liability insurance, we should establish a perfect legal system. First of all, the scope of the main body and the scope of the insurance liability insurance should be properly expanded, and the scope of the protection of the insurance should be extended to medical personnel, interns, doctors, and so on. The general medical damage will be included in the scope of medical liability insurance. Secondly, the provisions of the Insurance Law on the direct claim of the third party should be perfected so that the injured third party can exercise his right more effectively to protect his own interests. Thirdly, the defense obligation of the insurer should be clearly defined in the form of law, so that the insurer can actively intervene in the handling of medical disputes and give play to the function of risk management and transfer of medical liability insurance. Finally, we should draw lessons from overseas experience, explore the establishment of no-fault medical liability insurance system, increase medical accident insurance, and establish a no-fault medical dispute compensation mechanism. This system can be used as an effective supplement of medical liability insurance and can make up for the loss of patients in time and play a positive role in the proper resolution of medical disputes.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284

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