卫生与法医疗过失的司法认定探析——基于243例医疗损害赔偿诉讼民事判决的数据

医疗过失是构成医疗损害赔偿责任的要件和前提,通过对243份医疗损害赔偿纠纷案件民事判决书中医疗过失的统计分析表明,我国医疗过失的判定没有统一标准,未能体现医学判断和法律判断的双重属性;医疗过失的鉴定机制二元化,医疗过失责任程度阐释不明,导致医患难以信服,破坏了我国司法统一的法治原则。《侵权责任法》实施后,应确立当时医疗水平为判定医疗过失的法律标准,建立一套可操作性的医疗过失认定规则和统一的医疗损害鉴定机制,以发挥司法处理医疗纠纷的法律功能和社会作用。

A study on judicial cognizance of medical negligence: Evidence from 243 civil trial of lawsuit for medical damage compensation

Liabilities of injury compensation in medical accidents is premise with medical negligence, the statistical analysis of civil judgment in the 243 incident of malpractice damage compensate dispute case showed that there is no uniform standard to determine. In addition, the dual nature of medical and legal judgments were not performed. Identification of the dual mechanism of medical negligence and interpretation of medical negligence was unknown. It is difficult to convince doctors and patients and undermine our rule of law of judicial uniform. After the implementation of "Tort Law", medical standards should be established to determine the medical negligence, establish a set of operational rules and medical malpractice unified authentication mechanism, make judicial playing the legal and social functions role in terms of solving medical negligence damage suit.