医疗侵权损害赔偿制度立法问题剖析——兼论医疗机构化解责任风险的途径

Medical Injury Compensation Rule——And The Path of Resolve Hospitals'Liability Risks

当前,我国司法实践中医疗侵权纠纷案件适用法律很混乱。主要原因是我国医疗侵权损害赔偿制度由多层次立法文件交叉规定,且各条款不一致。笔者认为,由国务院颁布的《医疗事故处理条例》中的医疗事故损害赔偿条款属于违宪违法的条款,应当尽快废止。而医疗侵权损害赔偿应统一适用民事基本法中的一般人身损害赔偿条款。此外,建立医疗责任保险制度是在市场经济体制中医疗机构化解责任风险的较优选择。

Nowadays,laws applied to medical tort suits are inconsistent in China.The reason is mainly that our nation＇s medical injury compensation rule has been included in several legal documents in which the rules are inconsistent.h is believed that the medical injury compensation provisions in Regulation on the Handling of Medical Accidents violate the constitution and the relative laws,se it should be abolished as soon as possible.Then,themedical injury compensation should be regulated in compensation on personal injury provisions in civil law.In addition,it is argued that the medical accident insurance system is good for hospitals to move out the liability risks in market-based economy.