防御性医疗的法律规制探讨

医疗行为的结果存在许多不确定性,随着患者维权意识的增强以及日益紧张的医患关系,医师在临床决策中不得不采取更多的防御性医疗行为。防御性医疗行为的危害主要包括患者医疗成本增加、医疗资源浪费、妨碍医学科技发展、医患互信进一步降低等。目前我国尚无立法明确对其进行规制。本文从现行医疗法律制度与防御性医疗行为的关系、医疗行为的“可容性危险”原则适用等角度出发,重点分析了防御性医疗行为的法律属性及构成,分析比较了防御性医疗和过度性医疗、保护性医疗的异同;为防御性医疗的法律判定与认定、侵权责任的法律构成与归责原则提供建议,同时为法律制度层面规制防御性医疗提供思路。

Review of the legal regulation of defensive medicine

Healthcare is a high-risk industry. There are many uncertain results of the medical practice. In the era of the strengthen law idea, doctors have to take more defensive medicine because of the growing awareness of patient rights and increasingly tense doctor-patient relationship. Defensive medicine is not easy to be identified because of various performance and strong concealment. The main hazards of defensive medicine include increased health care costs of patients, waste of medical resources, impede the development of medical technology, and further reduce the trust between doctors and patients and so on. The comprehensive legal system of healthcare, obviously helps alleviate the defensive medicine. Since the performance of defensive medical practices is diversified and special properties, there is no clear legislation to regulate it. How to reasonably define and analyze the legal property of defensive medicine is a necessary prerequisite for its legal regulation. From the view of the relationship existing between the legal system and defensive medical practice, medical practice "can be capacitive danger" principle applying. This paper analyzes the defensive medicine legal property and composition, compares the similarities and differences of defensive medicine between excessive medicine and protective medicine. It also provide suggestion to the determined and recognized defensive medicine from the legal level and constitution principles of tort liability, and to provide regulation of the legal system-level ideas for defensive medicine.