论过度医疗的民事责任

发布时间：2018-06-14 12:58

本文选题：过度医疗 + 认定机制　；参考：《海南大学》2015年硕士论文

【摘要】：过度医疗指的是医疗机构及其医务人员在为病人检查,治疗,护理等医疗过程中,违反法律,法规,医疗实践或合同义务,故意对病人做不必要的检查和治疗,超出了病人自己所需要的诊断和治疗范围,危害病人的人身和财产权利。其特点是不易察觉、治疗方法远远超过实际需要、违反跟医疗诊治有关的规范、医疗费用昂贵、法律法规的漏洞使得违法成本过低。其危害是侵犯患者权益、恶化医患关系、浪费医疗资源、提升医疗风险。目前,我国法律法规很少涉及到过度医疗纠纷及其赔偿,医师法、药物管理法和相关医疗事故鉴定等这些法律文件都没有具体的规定过度医疗。直至2010年的侵权法的相关法条才有过度检查的规定,这是第一次有关于过度医疗明确立法,但涉及范围小。尽管侵权责任法对过度医疗做了规定,但范围狭窄、未明确医务人员告知义务的标准、举证责任分配不清晰。我国规范过度医疗民事责任的法律法规等文件存在了很多的法律漏洞：一是在认定方面的缺陷,这其中包括过度医疗行为的认定标准不明确、过度医疗对“医疗水平”的认定不切合实际；二是过度医疗中未明确患者知情同意权的标准；三是过度医疗侵权举证责任存在缺陷；四是过度医疗的赔偿主体单一；五是过度医疗责任险的缺陷,医疗险的保险费高但赔偿的保险金低、承保范围过小过窄、医疗机构依然陷入无休止的医疗纠纷,并没有从纠纷中解脱出来。因此,针对上述所存在的法律问题,提出了如下完善的对策：一是完善过度医疗民事责任的鉴定,包括提高过度医疗民事损害赔偿的认定水平,摆脱绝对客观的医学标准；二是保障患者的知情同意权,患者可以根据合同关系或是侵权关系,相应的提出违约责任或是侵权责任,但侵权责任更有利于保护患者知情权权益；三是引入举证责任缓和规则；四是扩大过度医疗赔偿义务主体；五是改善建立过度医疗责任保险制度,设立强制医疗责任险、制定医疗意外保险制度。
[Abstract]:Excessive medical treatment refers to the fact that medical institutions and their medical personnel deliberately conduct unnecessary examinations and treatment of patients in the course of examination, treatment, nursing, and other medical procedures, in violation of laws, regulations, medical practices or contractual obligations. Beyond the scope of diagnosis and treatment needed by the patient himself, endangers the patient's personal and property rights. Its characteristics are that it is not easy to detect, the treatment method far exceeds the actual need, violates the related standard of medical treatment, the medical treatment cost is expensive, the loophole of the laws and regulations causes the illegal cost to be too low. Its harm is to violate patients' rights and interests, to worsen the relationship between doctors and patients, to waste medical resources and to promote medical risks. At present, the laws and regulations of our country seldom deal with excessive medical disputes and their compensation. The law of doctors, the law of drug administration and the identification of medical malpractice have no specific provisions on overtreatment. It was not until the relevant provisions of the 2010 Tort Act that there was overcensorship, the first time that there was explicit legislation on overtreatment, but it was small in scope. Although the tort liability law provides for excessive medical treatment, the scope is narrow, the standard of duty of informing medical personnel is not clear, and the distribution of burden of proof is not clear. There are many legal loopholes in the documents of our country to regulate the civil liability of excessive medical treatment. One is the defects in the identification, including the unclear standards of the identification of the excessive medical treatment. The identification of "medical level" in excessive medical treatment is not practical; second, the standard of patient's right of informed consent is not clear in excessive medical treatment; third, the burden of proof of excessive medical treatment tort is defective; fourth, the compensation subject of excessive medical treatment is single; Fifth, the defects of excessive medical liability insurance, the medical insurance premium is high but the compensation is low, the coverage is too small and too narrow, the medical institutions are still in endless medical disputes, and did not extricate themselves from the disputes. Therefore, in view of the legal problems mentioned above, this paper puts forward the following perfect countermeasures: first, to perfect the identification of civil liability for excessive medical treatment, including raising the level of identification of civil damage compensation for excessive medical treatment, and to get rid of the absolute objective medical standard; The second is to protect the patient's right of informed consent, according to the contract relationship or tort relationship, the patient can propose breach of contract liability or tort liability, but tort liability is more conducive to the protection of patients' right to know rights and interests; The third is to introduce the rules of easing the burden of proof; the fourth is to expand the subject of excessive medical compensation obligations; the fifth is to improve the establishment of excessive medical liability insurance system, the establishment of compulsory medical liability insurance, the establishment of medical accident insurance system.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923

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