医疗机构的病历记载或保存义务论——以医疗损害责任纠纷的应对为视角

Medical Institution's Obligation of Medical Case Record and Preservation:A Review from the Perspective of Coping with Medical Liability Disputes

病历内容的二元性决定了医疗机构负有记载或保存义务,其内容包括义务目的、记载内容、记载方法及记载程度,该义务的实现路径有情报诉讼、阶段诉讼、证据保全、文书提出命令及定暂时状态假处分。《侵权责任法》将我国病历记载或保存义务立法由行政法模式转为民法模式,但仍有不足,且其实现路径只有诉中证据保全,亟需完善。

Decided by duality content of medical record, medical institutions should bear the obligation of recording or pre- serving it, and it includes purpose, content, method and degree. There are five paths to achieve the obligation, intelligence lawsuit, stages proceedings, preservation of evidence, instruments present order, and transient state management. Though the civil obligation of medical record is established by Tort Liability Law, yet there is also inadequacy about it and only one path--evidence preservation in proceedings to achieve it, therefore it is badly in need of improvement.