实习医师违规行医的法律规制

发布时间：2018-03-23 04:00

本文选题：实习医师　切入点：医疗行为　出处：《南京大学》2014年硕士论文　论文类型：学位论文

【摘要】：医疗行业因其本身具有高度的专业性和风险性,对从事医疗行业的医务人员有着更加严格的专业要求。然而,医务人员的培养是一个循序渐进的过程,在取得正式的执业资格之前,实习医师是任何一名合格的执业医师都必须经历的阶段。实习医师虽在医疗机构工作,因其未取得执业资格不能独立实施医疗行为,但可以在执业医师的指导下实施医疗行为,从而积累临床经验。实习医师身份的特殊性使其无法完全履行医师的职责。实习医师具有身份上的模糊性,就诊人员无法准确知悉实习医师与执业医师的不同,从而造成实习医师违规行医的现象时有发生。我国目前还未有专门的法律对实习医师违规行医进行法律规制,在实习医师违规行医造成就诊人损害发生后,实习医师因主体身份的特殊性无法一概认定为医疗侵权也不能全以非法行医造成损害加以法律规制根据法律规定。实习医师不得独立实施医疗行为,其所有医疗行为需在执业医师的指导监督下方可进行。实习医师作为执业医师培养的必经阶段也可以在执业医师指导下从事医疗行为,具有一定的专业素养,但因其临床经验不够,不足以取得执业资格,故其无法完全履行执业医师义务,对其违规行医造成损害的,一般有两种观点：其一,以医疗损害责任加以规制；其二,以非法行医行为加以规制。通过北大医疗事故一案看来,外界对实习医师违规行医行为存在认识偏差,只要实习医师造成损害结果发生的一概以非法行医论之,然而事实并非如此。本文从临床实际出发,以实习医师违规行医为探讨对象,在阐述了一般性的医学概念后,主要从实习医师违规行医的责任认定和责任承担两个主要方面对实习医师违规行医进行侵权法上的分析论述,从而确定实习医师违规行医后法律责任的承担。根据有无医疗机构授权,实习医师违规行医一般有以下两种情形：1.医疗机构授权下的实习医师违规行医,2.无医疗机构授权实习医师擅自违规行医。虽然该两种情形下对认定实习医师违规行医造成损害的责任认定并无实质的区别,但在法律责任承担上却大有不同,前者是由医疗机构承担损害赔偿责任,而后者则是由实习医师本人承担损害赔偿责任。只要责任主体确定,具体的责任承担方式皆可按照相关法律规定加以确定,从而保障受害人的利益。本文撰写的主要目的是为了分析实习医师违规行医现象产生的原因,从法律层面上找出相应的对策,规范实习医师的临床培养,逐渐减少甚至杜绝违规行医现象的再发生；加强相关法制宣传教育,提升广大人民群众对实习医师培养的理解和认同感,从而建立和谐的医患关系。
[Abstract]:Because of its high degree of professionalism and risk, the medical industry has more stringent professional requirements for the medical personnel engaged in the medical profession. However, the training of medical personnel is a gradual and gradual process. Before obtaining a formal practice qualification, a trainee is a stage that any qualified medical practitioner must go through. Although the intern works in a medical institution, he or she cannot independently carry out a medical act because he is not qualified to practise. However, medical practice can be carried out under the guidance of a medical practitioner, thus accumulating clinical experience. The particularity of the identity of an intern makes him unable to fully perform his duties as a physician, and the intern has the ambiguity of identity. The doctor can not know exactly the difference between the intern and the medical practitioner, which results in the phenomenon that the intern violates the practice of medicine from time to time. At present, there is no special law to regulate the illegal practice of the intern in our country. After an intern who violates the practice of medical treatment causes damage to the doctor, Because of the particularity of the subject identity, interns can not always be recognized as medical tort, nor can they be completely regulated by the law as a result of damage caused by illegal medical practice, and according to the provisions of the law, interns are not allowed to carry out medical acts independently. All its medical activities can only be carried out under the guidance and supervision of the medical practitioner. Interns, as a necessary stage of training, can also engage in medical behavior under the guidance of the medical practitioner and have a certain degree of professional accomplishment. But because its clinical experience is not enough, not enough to obtain the profession qualification, therefore it is unable to fulfill the practice doctor's duty completely, causes the harm to its illegal practice medicine, generally has two kinds of viewpoint: first, with the medical treatment damage responsibility to regulate; second, According to the case of medical malpractice at Peking University, the outside world has a bias in understanding the illegal practice of medicine, so long as the result of injury caused by the intern is discussed as illegal practice. However, it is not the case. This article, based on the clinical practice, takes the practice of medical practice as the object of discussion, after expounding the general concept of medicine, Mainly from the two main aspects of the responsibility and responsibility of practicing medicine illegally, the author analyzes and discusses the tort law of the illegal practice of medical practice by interns. In order to determine the legal liability of interns after practicing medicine illegally. According to the authorization of medical institutions, There are generally two situations in which interns practice illegally under the authority of medical institutions. 2. No medical institution authorizes interns to practice medicine without authorization. There is no material difference between the determination of liability for damage caused by medical practice, However, the legal liability is quite different. The former is for the medical institution to bear the liability for damages, while the latter is for the intern himself to bear the liability for the damage. As long as the subject of the responsibility is determined, Specific ways of assuming responsibility can be determined in accordance with relevant laws and regulations to protect the interests of the victims. The main purpose of this article is to analyze the causes of the phenomenon of interns practicing medicine illegally. Find out the corresponding countermeasures from the legal level, standardize the clinical training of interns, gradually reduce or even eliminate the recurrence of illegal medical practice, strengthen the relevant legal publicity and education, To promote the understanding and identity of the masses of the masses on the training of interns, thus to establish a harmonious relationship between doctors and patients.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.16

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