严格责任倾向——对当前医疗纠纷诉讼审判的思考

The trend of strict liability: reflection on current trials for medical dispute lawsuits

我国现有法律表明医疗侵权诉讼适用过错责任原则,但是目前审判界有对医方采取严格责任的倾向。严格责任主要通过举证责任倒置实现,强调对受害人的保护。作者列举典型案例,分析医疗事故争议案件采用严格责任的表现:①患方对医方造成的损害是否具有过错无须举证;②医方免责事由是受到限制的,医方不得以尽到合理注意为抗辩条件;③医疗行为与患方损伤结果之间的因果关系也是推定的。作者认为严格责任虽可以提高医务人员的注意义务,但是在缺乏成熟的医疗责任保险情况下审判适用严格责任原则加重了医疗机构及其工作人员的责任,并不能真正解决医患争议。审判机构应该严格按照法律规定的情形来适用严格责任,救济患方损害不能牺牲司法公正。

Existing laws in China indicate that the fault liability doctrine should be applied in tort lawsuits. However, there is currently the trend in the judicial field of applying strict liability with regard to medical institutions. Strict liability, realized chiefly through the reversal of the burden of relief, stresses the protection of the victims. By citing typical cases, the authors analyze the application of strict liability in medical malpractice disputes： ①Patients have no burden of relief on whether hospitals made errors in the harms brought about. ②There are limitations to reasons for hospitals to get exempted from liabilities; they cannot use reasonable care as pleas. ③The relationship between medical actions and patients＇ damages is presumed. The authors hold that although the use of strict liability may improve reasonable care by medical workers, yet when mature medical liability insurances are not in place, the application of strict liability in trials adds to the liability of medical institutions and their staff and cannot lead to genuine settlement of patient-doctor disputes. Judicial institutions ought to apply strict liability in strict accordance with the law and avoid making compensations for patients at the compromise of judicial justice.