论医方的紧急医疗措施权

发布时间：2018-11-25 12:07

【摘要】：目前医疗纠纷已经成为社会上广泛关注的焦点,医患矛盾不断加深,而医患之间权利义务处于不平衡的状态,过分保护患方的权利,加之患方滥用自身权利现象的增加导致医方权利不断受到侵犯,医患关系紧张本质上将不利于患方权益的保障。实践中,在紧急情况下因过分保护患方的知情同意权,而使医方束手无策进退两难的情况时常发生,医方擅自采取医疗措施则会侵犯患方的知情同意权,医方尊重患方的知情同意权,则会导致患者的生命健康权得不到保障,依然会带来法律上以及舆论上的惩罚。那么,在紧急情况下,则需要对患方的知情同意权进行限制,赋予医方紧急医疗措施权,对抗患方的知情同意权,不再强制医方履行其相关义务,而是履行其紧急救治义务,才能最终保障患者的生命健康权。本文第2章对医方紧急医疗措施权进行了详细的界定,紧急医疗措施权是指在紧急情况下,得不到患方知情同意,为保障患者的利益,医方可采取紧急医疗措施的权利。紧急医疗措施权具有紧急性、专业性、高风险性以及以患者利益为根本出发点等特征。第3章对紧急医疗措施权相关法律关系进行分析,分别介绍了患方知情同意权与患者生命健康权之关系、医方紧急医疗措施权与患方知情同意权之关系以及医方紧急医疗措施权与医方紧急救治义务之关系,各权利义务关系密不可分。第4章指出我国《侵权责任法》第56条赋予了医方紧急医疗措施权,但是其法律规定存在明显的漏洞,不能解决医方在实践中行使紧急医疗措施权时面临的复杂情况。首先,我国医方紧急医疗措施权行使的前提及条件设置不合理;其次,我国紧急医疗措施权行使的审批制度设置不合理;再次,缺少对医方紧急医疗措施权行使的权利保障机制和权利监督机制。我国医方紧急医疗措施权的行使不仅存在法律规定的漏洞,在现实行使中也陷入极大的困境,在医患信任跌破底线的背景下,因医方紧急医疗措施权的行使是将患方自主决定权过渡到医方手中,对抗患方的知情同意权,加上医学的复杂性不确定性,很容易达不到预期的医疗效果而与患方陷入医疗纠纷,医方承担较高的法律和经济风险。针对我国医方紧急医疗措施权行使的法律漏洞和现实困境,本文在第5章提出了以下几点建议:一、完善紧急医疗措施权行使前提的规定;二、建立紧急医疗措施审查委员会;三、完善医方紧急医疗措施权行使的保障机制;四、提高医方职业道德及执业水平;五、建立医疗信用评价制度;六、规范媒体与自媒体的行为。希望通过以上几点建议能够保障医方紧急医疗措施权的行使,从而真正维护患者的权益。
[Abstract]:At present, medical disputes have become the focus of widespread concern in the society. The contradictions between doctors and patients are deepening, while the rights and obligations between doctors and patients are in an unbalanced state, and the rights of patients are over-protected. In addition, the increase of abuse of the rights of patients leads to the violation of the rights of the doctors, so the tension between doctors and patients will in essence be detrimental to the protection of the rights and interests of the patients. In practice, the dilemma often occurs because of the excessive protection of the informed consent right of the patient in an emergency, and the medical party's right to informed consent will be violated if the medical party takes medical measures without authorization. If the patient's right to informed consent is respected, the patient's right to life and health will not be guaranteed, and will still bring legal and public punishment. Well, in emergency situations, it is necessary to restrict the right of informed consent of the patient, endow the doctor with the right to emergency medical measures, counteract the right of informed consent of the patient, and no longer compel the medical party to perform its relevant obligations, but to fulfil its obligation of emergency treatment. Only then can the patient's right to life and health be protected. The second chapter defines the right of medical emergency medical measures in detail. The right of emergency medical measures refers to the right to take emergency medical measures to protect the interests of patients without the informed consent of the patients. The right to emergency medical measures is characterized by urgency, professionalism, high risk and taking patient's interests as the basic starting point. Chapter 3 analyzes the relationship between the right to informed consent and the right to life and health of patients. The relationship between the right of emergency medical measures and the right of informed consent of the patient and the right of emergency medical measures and the obligation of emergency treatment are closely related to the rights and obligations. Chapter 4 points out that Article 56 of our country's Tort liability Law gives the doctors the right to emergency medical measures, but there are obvious loopholes in its legal provisions, which cannot solve the complex situation that the doctors face when they exercise the right of emergency medical measures in practice. First, the premise and conditions of the exercise of the right of emergency medical measures in our country are unreasonable; secondly, the system of examination and approval of the exercise of the right of emergency medical measures in our country is unreasonable. Thirdly, it lacks the right guarantee mechanism and the right supervision mechanism to exercise the right of medical emergency medical measures. The exercise of the right of medical emergency medical measures in our country not only has the loopholes stipulated by law, but also falls into a great dilemma in the actual exercise. Under the background that the trust between doctors and patients falls below the bottom line, Because the exercise of the right to emergency medical measures is to transfer the patient's autonomy to the patient's hands, to counter the patient's right of informed consent, plus the complexity of medical uncertainty, It is easy to fail to achieve the desired medical effects and fall into medical disputes with the patient, who bear higher legal and economic risks. In view of the legal loopholes and practical difficulties in the exercise of the right to emergency medical measures in our country, this paper puts forward the following suggestions in Chapter 5: first, to perfect the provisions on the premise of the exercise of the right to emergency medical measures; second, to establish a review committee on emergency medical measures; Third, perfect the safeguard mechanism of the right of medical emergency medical measures; fourth, improve the professional ethics and practice level; fifth, establish the medical credit evaluation system; sixthly, standardize the behavior of the media and the self-media. It is hoped that the above suggestions can guarantee the exercise of the right of medical emergency medical measures, so as to protect the rights and interests of patients.
【学位授予单位】：上海师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923

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