医疗损害证明责任分配问题研究
发布时间：2018-07-15 10:06
【摘要】：医疗损害责任是一种极为特殊的侵权责任,随着人们法制观念的日益强化,在当前医患关系日趋紧张的社会环境下,医疗纠纷愈演愈烈、医疗损害责任诉讼大幅增加。然而,由于医疗服务中,医学专业性与特殊性以及患者与医疗机构之间的信息知悉程度往往不能对等。一方面,患者及其近亲属往往由于获取不到真实有效的医疗信息而在纠纷中处理不利地位；另一方面,医疗机构及其医务人员常常限于举证责任过大的制约而实施防御性医疗甚至过度医疗。就法学角度而言,如何使双方在纠纷诉讼中实现证明责任的平衡直接影响到医患关系乃至社会生活的稳定。2010年《侵权责任法》颁布以来,医疗损害责任中证明责任的分配有了很大变化,笔者通过医疗损害证明责任分配的法学分析,明确实务中如何实现纠纷诉讼中事实清楚、证据充分、双方利益最大化的诉讼结果。第一部分,笔者首先解释了医疗损害责任、医疗损害证明责任、医疗损害证明责任的几种类型以及医疗损害证明责任在医患双方之间责任分配的一般原理这些基本概念和理论。这一部分着重阐述了在《侵权责任法》规定下医疗损害责任的证明责任分配的一般规则的原理及法律规定。第二部分,笔者从患方角度分别分析了在医疗技术损害责任、医疗伦理损害责任、医疗产品损害责任中患方应当承担的证明责任内容。基于对这些内容的分析,笔者认为当前患方对医疗机构主张医疗损害侵权责任的举证有着一些困境,并且针对这些证明困境提出现行法律体系下的解决途径和解决机制。第三部分,笔者则是从医方角度展示了医疗机构在应对医疗纠纷诉讼时所应当承担的证明责任。通过对医疗机构证明责任分配的分析,我认为时下热议的防御性医疗有其制度必然性并提出了一些化解医疗机构防御性医疗与患者反对此种医疗方式的强烈诉求之间矛盾的解决方式。最后,笔者得出结论认为侵权责任法所规定的医疗损害证明责任在医患双方之间的分配是合理适当的,充分考虑了医疗事业的长远发展以及就诊患者的生命健康权益,并实现了二者间较为良好的平衡。虽然在实务中,医疗纠纷诉讼的举证仍存在一定困难,但可以通过一些具体制度的建立以及行业规范的制定对此问题进行补充和完善。
[Abstract]:Medical damage liability is a very special tort liability. With the strengthening of people's concept of legal system, under the social environment of the increasingly tense doctor-patient relationship, medical disputes become more and more serious, and the lawsuit of medical damage liability increases significantly. However, because of medical service, medical specialty and particularity, and the degree of information knowledge between patients and medical institutions are often not equal. On the one hand, patients and their close relatives often deal with adverse positions in disputes because they do not have access to real and effective medical information; on the other hand, Medical institutions and their medical staff are often restricted by excessive burden of proof and implement defensive or even excessive medical treatment. From the point of view of law, how to balance the burden of proof between two parties in dispute litigation directly affects the stability of doctor-patient relationship and even social life. Since the promulgation of the Tort liability Law in 2010, The distribution of burden of proof in medical damage liability has changed a lot. Through the legal analysis of the distribution of burden of proof of medical damage, the author makes clear how to realize the clear facts and sufficient evidence in the dispute litigation in practice. The outcome of a lawsuit that maximizes the interests of both parties. In the first part, the author first explains the basic concepts and theories of medical damage liability, several types of burden of proof of medical damage, and the general principle of the distribution of burden of proof of medical damage between doctors and patients. This part focuses on the principles and legal provisions of the general rules on the distribution of the burden of proof of medical damage under the provisions of the Tort liability Law. In the second part, the author analyzes the content of the burden of proof in medical technology damage liability, medical ethics damage liability and medical product damage liability from the point of view of the patient. Based on the analysis of these contents, the author thinks that there are some difficulties in the proof of medical injury tort liability of medical institutions, and puts forward the solutions and mechanisms under the current legal system. In the third part, the author shows the burden of proof that medical institutions should bear when dealing with medical disputes. Through the analysis of the distribution of burden of proof in medical institutions, I think the defensive medical treatment has its system inevitability and puts forward some ways to resolve the contradiction between the defensive medical treatment of medical institutions and the strong demands of patients opposing this kind of medical treatment. Finally, the author concludes that the distribution of the burden of proof of medical damage between the doctors and patients is reasonable and appropriate, and the long-term development of the medical cause and the life and health rights of the patients are fully considered. A good balance between the two is realized. Although in practice, there are still some difficulties in the proof of medical dispute litigation, but it can be supplemented and perfected by the establishment of some specific systems and the establishment of industry norms.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2123714
[Abstract]:Medical damage liability is a very special tort liability. With the strengthening of people's concept of legal system, under the social environment of the increasingly tense doctor-patient relationship, medical disputes become more and more serious, and the lawsuit of medical damage liability increases significantly. However, because of medical service, medical specialty and particularity, and the degree of information knowledge between patients and medical institutions are often not equal. On the one hand, patients and their close relatives often deal with adverse positions in disputes because they do not have access to real and effective medical information; on the other hand, Medical institutions and their medical staff are often restricted by excessive burden of proof and implement defensive or even excessive medical treatment. From the point of view of law, how to balance the burden of proof between two parties in dispute litigation directly affects the stability of doctor-patient relationship and even social life. Since the promulgation of the Tort liability Law in 2010, The distribution of burden of proof in medical damage liability has changed a lot. Through the legal analysis of the distribution of burden of proof of medical damage, the author makes clear how to realize the clear facts and sufficient evidence in the dispute litigation in practice. The outcome of a lawsuit that maximizes the interests of both parties. In the first part, the author first explains the basic concepts and theories of medical damage liability, several types of burden of proof of medical damage, and the general principle of the distribution of burden of proof of medical damage between doctors and patients. This part focuses on the principles and legal provisions of the general rules on the distribution of the burden of proof of medical damage under the provisions of the Tort liability Law. In the second part, the author analyzes the content of the burden of proof in medical technology damage liability, medical ethics damage liability and medical product damage liability from the point of view of the patient. Based on the analysis of these contents, the author thinks that there are some difficulties in the proof of medical injury tort liability of medical institutions, and puts forward the solutions and mechanisms under the current legal system. In the third part, the author shows the burden of proof that medical institutions should bear when dealing with medical disputes. Through the analysis of the distribution of burden of proof in medical institutions, I think the defensive medical treatment has its system inevitability and puts forward some ways to resolve the contradiction between the defensive medical treatment of medical institutions and the strong demands of patients opposing this kind of medical treatment. Finally, the author concludes that the distribution of the burden of proof of medical damage between the doctors and patients is reasonable and appropriate, and the long-term development of the medical cause and the life and health rights of the patients are fully considered. A good balance between the two is realized. Although in practice, there are still some difficulties in the proof of medical dispute litigation, but it can be supplemented and perfected by the establishment of some specific systems and the establishment of industry norms.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
【参考文献】
相关期刊论文 前1条
1 艾尔肯;;医疗损害举证责任之缓和规则[J];北方法学;2014年05期
，本文编号：2123714
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