医疗事故损害赔偿问题研究(1)(山西大学2004届法律硕士研究生毕业论文)

本文以《医疗事故条例》与民事法律、法规及司法解释的冲突为切入点,首先从医疗事故的构成要件着手分析,将医疗事故界定为“医疗机构及其工作人员在医疗活动中,违反医疗卫生法律、行政法规、部门规章和诊疗护理规范、常规,过错造成患者人身损害的事故”,拓宽了医疗事故的范围,并在此基础上着重强调医疗机构的谨慎注意义务,缩小了医疗事故的免责事由。其次,经过分析认为医疗事故损害赔偿责任的性质是侵权责任与违约责任的竞合,在实践中应根据当事人意思自治原则区别对待,适用不同的归责原则,同时指出了赔偿范围与标准以及医疗事故鉴定的不足,批驳了“不属于医疗事故的,不承担赔偿责任”的错误观点,论证了惩罚性赔偿原则在医疗事故损害赔偿纠纷中适用的可行性,提出了医疗事故网上鉴定的设想。最后为了强化对患者的司法救济,分散医疗机构的风险,消化医疗机构的损失,平衡医患双方的利益冲突,构筑完整的医疗事故损害赔偿体系,对医疗责任保险的保险范围、除外责任提出了自己的看法,同时提出医事法律应借鉴其他法律的相关规定,对医疗责任保险做出强制投保规定的设想。

Research into compensation for damages in medical accidents

This paper dealed with the problem of compensation for damages in medical accidents. It is a topic of general interest as well as a difficulty in trials. The author emphasized the Measures for Handing Medical Accidents, the civil laws, regulations and judicature interpretions. An medical accident was defined as breaking the law of health, administrative regulations, branch rules, and rules for medical care, medical organization and it is the people working in the organization causes the damages. Therefore this definition widens the region of medical accident, emphasizes the liability of acting cautiously, and narrows the reason for free liability. The nature of medical accident is the existence of liability for tort and liability for breach of the contract. In practice, it should be dealt with according to the autonomy of different parties, use different rules to determine duties. The author pointed out the region and standard of compensating and the shortcomings of determination. It is wrong that compensation is not needed if a medical accident is not determined. The author discussed the practice of rules for compensating in the dispute and suggested online determination of medical accidents. In order to strengthen the legal relief to the wounded, cater the medical organization's risk and remove their losses, balance the benefit conficts of the physicians and sufferer, build a complete system of compensation, the author described his view about obligation of freeing from liability, medical insurance region, and liability insurance for medical accidents according to other laws and regulations.