论医疗免责条款的法律规制

医疗免责条款是医患双方在医疗合同中事先约定的旨在限制或免除医方未来医疗责任的条款。它的存在有其法理学、医学伦理学和社会学基础，因而我们所要控制的不应该是医疗免责条款的本身而是医疗免责条款中不合理的内容。通过制定专门的“医疗合同法”或者在《合同法》中列出医疗合同专章，并在其中对医疗免责条款的订入和效力判定做出详细的规制，既可以避免触犯到法律的普遍性问题，又可以充分考虑医疗免责条款的特殊性，是一种可取的立法体例。立法内容上可依据《合同法》的基本精神将医疗损害赔偿责任认定为无过错责任，并对《合同法》第53条做出限制性解释。

Discussion on Legal System of Medical Exoneration Clause

Medical exoneration clause is to limit or relieve medical responsibility of medical party that has been reach agreement in advance in medical contract between doctor and patient. It has its legal principle, medical ethics and sociology basis. Hence, medical exoneration clause should not be controlled, but the irrational contents in medical exoneration clause should be controlled. By legislating special medical contract law or listing special chapter in Contract Law, and making detailed legal system for integration and efficacy judgment of medical exoneration clause, it could not only avoid to touch the general issues of law, but also thoroughly consider the specialty of medical exoneration clause, which is one kind of acceptably legislative structure. According to basic spirit of Contract Law, compensation liability of medical harm should be convinced to liability without fault and give a limited explanation to the 53rd clause in Contract Law.