论错误出生的侵权损害赔偿
发布时间：2018-08-05 13:20
【摘要】：错误出生之诉,是指在孕妇妊娠期间,因医方在产前检查和产前诊断中存在过失,未能检测出胎儿的先天缺陷,或对胎儿的父母未尽合理告知义务,致使孕妇未能及时终止妊娠,最终产下缺陷儿,父母为此所提起的诉讼。该类案件最早见于美国,后各国均有案例出现,然而在赔偿请求权基础及赔偿范围上,争议颇大。本文从我国司法裁判中“错误出生”案件概览式描述入手,提出几个主要问题:谁享有请求权、损害如何界定、因果关系如何判断、过错有哪些以及损害赔偿的范围如何确定。本文综合运用了法教义学分析法、案例分析法及比较分析法,得出如下结论。缺陷儿的父母有权请求医疗机构承担侵权赔偿责任。一般情形下,缺陷儿单独起诉的话,在价值衡量、侵权构成要件及法律政策上存在障碍,然而在特殊情形下,应允许缺陷儿以本人名义提起诉讼。在错误出生之侵权损害赔偿中,损害是因医方过失,侵犯孕产妇被告知后做出决定的权益,继而造成的财产上和精神上的不利益。该权益可被纳入侵权法保护的权益范围中;医方的过失直接侵害了父母的知情及生育选择权益,从而导致缺陷儿出生,医方过失诊疗行为与损害后果间存在相当因果关系;医方的过错可归纳为三方面:特定的告知说明义务、给予产前诊断的义务以及提出终止妊娠的医学建议义务。在第二方面的给予产前诊断义务中,本文指出了行政法规《母婴保健法实施办法》第20条与卫生部部门规章《产前诊断技术管理办法》第17条的细微差别,在案件审理过程中,法官应综合孕妇的自身情况以及医疗机构的注意义务程度,做出综合判断,如果有必要应适用部门规章的规定。司法实践中,法院往往过度依赖鉴定机构的意见,但医学上的过错不完全等同于法律上的过错,法官在参考鉴定意见的同时,应融入自己对法律、具体案件的思考,在个案中加以确定。关于赔偿范围,怀孕费用、特殊的抚养费用、一般的抚养费用以及精神损害抚慰金均能得到赔偿。另外,残疾赔偿金、死亡赔偿金及丧葬费也应得到赔偿。损益相抵规则不能适用于财产损害赔偿,有条件地适用精神损害赔偿。医方存在如下抗辩理由:医方确实尽到高度注意义务但碍于医疗水平无法精确诊断出缺陷、孕产妇自己的过错、医方仅违反极其轻微的告知义务以及超过诉讼时效。
[Abstract]:"false birth complaint" refers to the failure of the doctor to detect the congenital defects of the fetus or the failure to fulfill the obligation of reasonable notification to the parents of the foetus due to the fault of the doctor in prenatal examination and prenatal diagnosis during pregnancy, As a result, the pregnant woman fails to terminate the pregnancy in time and finally gives birth to a defective child. This kind of cases was first found in the United States, but there are many cases in various countries. However, there is a great dispute in the basis and scope of compensation claims. Starting with the general description of the case of "wrong birth" in judicial adjudication in our country, this paper puts forward several main problems: who enjoys the right of claim, how to define the damage, how to judge the causality, what is the fault and how to determine the scope of the damages. This paper synthetically applies the method of jurisprudence, case analysis and comparative analysis, and draws the following conclusions. Parents of defective children have the right to claim tort liability from medical institutions. Generally speaking, there are obstacles in value measure, tort constitution and legal policy, but under special circumstances, the defective child should be allowed to sue in his own name. In the compensation for tort damage caused by wrong birth, the damage is caused by medical negligence, infringing on the rights and interests of the pregnant and lying-in women who have been informed of their decisions, and resulting in property and spiritual disbenefits. This right can be brought into the scope of the rights and interests protected by tort law, the fault of the medical side directly infringes the parents' rights and interests of informed and reproductive choice, which leads to the birth of the defective child, and there is quite a causal relationship between the negligent diagnosis and treatment of the medical side and the consequences of the damage. The doctor's fault can be summed up in three aspects: the specific obligation to inform, the obligation to give prenatal diagnosis, and the obligation to propose medical advice for termination of pregnancy. In the second aspect of the obligation to give prenatal diagnosis, this article points out the subtle differences between Article 20 of the Administrative regulations on the implementation of the Maternal and Child Health Law and Article 17 of the regulations of the Ministry of Health on the Management of Prenatal Diagnostics. The judge shall synthesize the pregnant woman's own condition and the duty of care of the medical institution, make a comprehensive judgment, and apply the regulations of the department if necessary. In judicial practice, the court often relies on the opinion of the appraisal institution, but the medical fault is not completely equal to the fault of the law. The judge should incorporate his own thinking about the law and the concrete case while referring to the opinion of the judge. Be determined in a case. The scope of compensation, pregnancy costs, special maintenance costs, general maintenance costs, and compensation for mental injury are all covered. In addition, disability compensation, death compensation and funeral expenses should also be compensated. The rule of profit and loss offset is not applicable to compensation for property damage, but to compensation for moral damage. The medical side has the following defense: the medical side does fulfill a high duty of care but due to the level of medical treatment can not accurately diagnose defects, maternal fault, doctors only violate the very minor obligation to inform and beyond the statute of limitations.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2165917
[Abstract]:"false birth complaint" refers to the failure of the doctor to detect the congenital defects of the fetus or the failure to fulfill the obligation of reasonable notification to the parents of the foetus due to the fault of the doctor in prenatal examination and prenatal diagnosis during pregnancy, As a result, the pregnant woman fails to terminate the pregnancy in time and finally gives birth to a defective child. This kind of cases was first found in the United States, but there are many cases in various countries. However, there is a great dispute in the basis and scope of compensation claims. Starting with the general description of the case of "wrong birth" in judicial adjudication in our country, this paper puts forward several main problems: who enjoys the right of claim, how to define the damage, how to judge the causality, what is the fault and how to determine the scope of the damages. This paper synthetically applies the method of jurisprudence, case analysis and comparative analysis, and draws the following conclusions. Parents of defective children have the right to claim tort liability from medical institutions. Generally speaking, there are obstacles in value measure, tort constitution and legal policy, but under special circumstances, the defective child should be allowed to sue in his own name. In the compensation for tort damage caused by wrong birth, the damage is caused by medical negligence, infringing on the rights and interests of the pregnant and lying-in women who have been informed of their decisions, and resulting in property and spiritual disbenefits. This right can be brought into the scope of the rights and interests protected by tort law, the fault of the medical side directly infringes the parents' rights and interests of informed and reproductive choice, which leads to the birth of the defective child, and there is quite a causal relationship between the negligent diagnosis and treatment of the medical side and the consequences of the damage. The doctor's fault can be summed up in three aspects: the specific obligation to inform, the obligation to give prenatal diagnosis, and the obligation to propose medical advice for termination of pregnancy. In the second aspect of the obligation to give prenatal diagnosis, this article points out the subtle differences between Article 20 of the Administrative regulations on the implementation of the Maternal and Child Health Law and Article 17 of the regulations of the Ministry of Health on the Management of Prenatal Diagnostics. The judge shall synthesize the pregnant woman's own condition and the duty of care of the medical institution, make a comprehensive judgment, and apply the regulations of the department if necessary. In judicial practice, the court often relies on the opinion of the appraisal institution, but the medical fault is not completely equal to the fault of the law. The judge should incorporate his own thinking about the law and the concrete case while referring to the opinion of the judge. Be determined in a case. The scope of compensation, pregnancy costs, special maintenance costs, general maintenance costs, and compensation for mental injury are all covered. In addition, disability compensation, death compensation and funeral expenses should also be compensated. The rule of profit and loss offset is not applicable to compensation for property damage, but to compensation for moral damage. The medical side has the following defense: the medical side does fulfill a high duty of care but due to the level of medical treatment can not accurately diagnose defects, maternal fault, doctors only violate the very minor obligation to inform and beyond the statute of limitations.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
【二级参考文献】
相关期刊论文 前3条
1 殷啸虎;宪法司法化问题的几点质疑和思考[J];华东政法学院学报;2001年06期
2 汪习根,陈焱光;论知情权[J];法制与社会发展;2003年02期
3 朱福惠;;我国人民法院裁判文书援引《宪法》研究[J];现代法学;2010年01期
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