医患纠纷中医疗技术过失司法鉴定相关问题研究
发布时间：2018-09-06 13:35
【摘要】：近年来,我国医患矛盾日益尖锐,医患纠纷案件数量居高不下,伤医事件屡见不鲜,已经逐渐影响到医疗机构的正常运作。正确处理医患纠纷不仅关系到患者的健康和利益,也关系到医疗机构的稳定乃至医学事业的长久发展。对医患纠纷案件进行司法鉴定,出具科学、准确的鉴定意见,能为法官准确认定医疗过失、确定赔偿数额提供依据,是正确处理医患纠纷的前提。在医患纠纷司法鉴定的过程中,对医疗技术过失做出准确的判断和分析,是一个经验性很强的工作。如何认定诊疗过程中是否存在过失,过失行为与损害后果是否存在必然的联系,是鉴定过程中需要我们重点解决,而这既是一个医学问题,也是一个法律问题。因此,准确理解医疗技术过失的法律认定原则并掌握鉴定方法,对处理这类案件具有重要的理论和实践意义。本文以医患纠纷鉴定案例及文献为研究基础,通过查阅大量的期刊、书籍等资料,全面了解医疗过失的归责、认定与鉴定原则,为医疗技术过失的认定与鉴定提供思路,并指出如今医疗技术过失司法鉴定实践中存在的一些问题,并提出改进建议,为医患纠纷案件的司法鉴定提供切实有效的方法,使司法鉴定意见的出具更具科学性和准确性,为医患纠纷处理工作提供参考意见。全文约三万字。第一章主要介绍医患纠纷及其成因,并界定医疗技术过失及医疗技术损害责任的概念。通过一个具体案例提出在医疗技术过失司法鉴定实践中存在的“以损害后果推定存在过失”、“混淆病情转归和医疗过失损害后果”等问题。第二章主要研究的是医疗技术过失司法鉴定的法学依据,包括英美法系和大陆法系国家对技术过失认定标准的异同以及国外认定标准中可为我国司法实务所借鉴的内容。我国对医疗技术过失的认定标准的改变以《侵权责任法》的出台为分水岭。此前,医疗损害责任认定的“双轨制”使医患纠纷不能得到妥善处理,从而激化医患矛盾。2010年,《侵权责任法》的正式实施,统一了医患纠纷处理中适用的法律规则,并对医患双方各自应承担的举证责任作出了更为明确的规定。第三章是本文的重点,通过对案例的分析、总结,得出一些医疗技术过失鉴定过程中的具体方法。包括对病历的审查应以《病历书写基本规范》为基础,应着重于对病历真实性的审查;注意义务的审查可分为对结果预见义务和结果避免义务的审查,其内容可依据相关法规、诊疗常规、医学文献等的记载;认定医疗水准时应综合考虑医疗机构所处的地区、级别的划分,医务人员的职称和研究方向等因素对治疗结果的影响,以及紧急情况下赔偿责任的免除;鉴定损害后果时,可以部分鉴定标准作为参考,并注意损害后果和并发症、医疗意外的区别;认定因果关系时,鉴定人应注意区别事实因果关系和法律因果关系,并尽可能将因果关系的分析限制在事实因果关系范围内,对损害参与度进行认定,为法官判断法律因果关系作出参考意见。第四章主要论述医疗技术过失鉴定中科学、客观、独立、公正、依法的鉴定原则,并提出一些司法鉴定程序的优化方案,如改进听证会流程、鉴定中听取医学专家意见以及鉴定人出庭制度完善的建议。希望通过完善鉴定程序与制度,使司法鉴定意见更具客观性、科学性、公正性。
[Abstract]:In recent years, the contradiction between doctors and patients has become increasingly acute, the number of cases of doctor-patient disputes remains high, and the occurrence of injuries has gradually affected the normal operation of medical institutions. Correct handling of doctor-patient disputes is not only related to the health and interests of patients, but also related to the stability of medical institutions and the long-term development of medical undertakings. It is the premise to deal with doctor-patient disputes correctly that a case is appraised by judicial expertise and scientific and accurate appraisal opinions are given, which can provide a basis for judges to determine medical negligence and the amount of compensation. Whether there is a fault in the process of diagnosis and treatment and whether there is an inevitable connection between the negligent behavior and the consequence of injury are the key problems to be solved in the process of identification, which is not only a medical problem, but also a legal problem. It has important theoretical and practical significance. Based on the case and literature of doctor-patient disputes identification, this paper comprehensively understands the imputation of medical negligence, the principles of identification and identification by consulting a large number of journals and books, and provides ideas for the identification and identification of medical technical negligence, and points out the practice of judicial identification of medical technical negligence. The first chapter mainly introduces the doctor-patient disputes and their causes, and defines the medical technology. The concepts of negligence and liability for medical technology damage are put forward through a specific case. The problems of "presumption of negligence by consequence of damage", "confusion of prognosis of illness and consequences of medical negligence damage" in the practice of judicial expertise on medical technology negligence are put forward. It includes the similarities and differences between the standards of cognizance of technical negligence in common law system and continental law system as well as the contents that can be used for reference in China's judicial practice in foreign countries. Disputes can not be properly dealt with, thus intensifying the contradiction between doctors and patients. In 2010, the formal implementation of the Tort Liability Law unified the applicable legal rules in the treatment of doctor-patient disputes, and made more clear provisions on the burden of proof for both doctors and patients. Examination of medical records should be based on the Basic Standards for Writing Medical Records and should focus on the authenticity of medical records. Examination of duty of care can be divided into examination of the obligation to foresee the results and the obligation to avoid the results. Its contents can be based on relevant laws and regulations, routine diagnosis and treatment, medical literature, etc. Records: The determination of medical standards should take into account the geographical location of medical institutions, the classification of levels, the professional titles of medical staff and the direction of research and other factors on the treatment results, as well as the exemption of liability in emergencies; in identifying the consequences of damage, part of the identification criteria can be used as a reference, and attention should be paid to the consequences of damage and complications, medical treatment. In identifying the causal relationship, the expert should pay attention to distinguishing the factual causality and the legal causality, and limit the analysis of the causality to the factual causality as far as possible, identify the degree of damage participation, and provide a reference for judges to judge the legal causality. The appraisal principle of science, objectivity, independence, impartiality and according to law in appraisal is put forward, and some optimizing schemes of judicial appraisal procedure are put forward, such as improving the procedure of hearing, hearing the opinions of medical experts in appraisal and perfecting the system of appearing in court. Positive.
【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;R-051
本文编号：2226500
[Abstract]:In recent years, the contradiction between doctors and patients has become increasingly acute, the number of cases of doctor-patient disputes remains high, and the occurrence of injuries has gradually affected the normal operation of medical institutions. Correct handling of doctor-patient disputes is not only related to the health and interests of patients, but also related to the stability of medical institutions and the long-term development of medical undertakings. It is the premise to deal with doctor-patient disputes correctly that a case is appraised by judicial expertise and scientific and accurate appraisal opinions are given, which can provide a basis for judges to determine medical negligence and the amount of compensation. Whether there is a fault in the process of diagnosis and treatment and whether there is an inevitable connection between the negligent behavior and the consequence of injury are the key problems to be solved in the process of identification, which is not only a medical problem, but also a legal problem. It has important theoretical and practical significance. Based on the case and literature of doctor-patient disputes identification, this paper comprehensively understands the imputation of medical negligence, the principles of identification and identification by consulting a large number of journals and books, and provides ideas for the identification and identification of medical technical negligence, and points out the practice of judicial identification of medical technical negligence. The first chapter mainly introduces the doctor-patient disputes and their causes, and defines the medical technology. The concepts of negligence and liability for medical technology damage are put forward through a specific case. The problems of "presumption of negligence by consequence of damage", "confusion of prognosis of illness and consequences of medical negligence damage" in the practice of judicial expertise on medical technology negligence are put forward. It includes the similarities and differences between the standards of cognizance of technical negligence in common law system and continental law system as well as the contents that can be used for reference in China's judicial practice in foreign countries. Disputes can not be properly dealt with, thus intensifying the contradiction between doctors and patients. In 2010, the formal implementation of the Tort Liability Law unified the applicable legal rules in the treatment of doctor-patient disputes, and made more clear provisions on the burden of proof for both doctors and patients. Examination of medical records should be based on the Basic Standards for Writing Medical Records and should focus on the authenticity of medical records. Examination of duty of care can be divided into examination of the obligation to foresee the results and the obligation to avoid the results. Its contents can be based on relevant laws and regulations, routine diagnosis and treatment, medical literature, etc. Records: The determination of medical standards should take into account the geographical location of medical institutions, the classification of levels, the professional titles of medical staff and the direction of research and other factors on the treatment results, as well as the exemption of liability in emergencies; in identifying the consequences of damage, part of the identification criteria can be used as a reference, and attention should be paid to the consequences of damage and complications, medical treatment. In identifying the causal relationship, the expert should pay attention to distinguishing the factual causality and the legal causality, and limit the analysis of the causality to the factual causality as far as possible, identify the degree of damage participation, and provide a reference for judges to judge the legal causality. The appraisal principle of science, objectivity, independence, impartiality and according to law in appraisal is put forward, and some optimizing schemes of judicial appraisal procedure are put forward, such as improving the procedure of hearing, hearing the opinions of medical experts in appraisal and perfecting the system of appearing in court. Positive.
【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;R-051
【参考文献】
相关期刊论文 前1条
1 吴祖祥;;论医疗技术过错——以医疗技术损害责任的法律适用为视角[J];东岳论丛;2011年03期
，本文编号：2226500
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