医疗损害案件鉴定人出庭问题探析

A Probe into Appraisers' Appearing in Court in Medical Damage Cases

为保障新《民事诉讼法》对鉴定人出庭的要求在司法实践中得到落实,还应对该法中没有涉及的内容加以明确:可以由医学会工作人员或者专家鉴定组组长出庭作证;《临床技术操作规范》《临床诊疗指南》、国家卫生和计划生育委员会的官方网站所公布的卫生标准以及高等医学院校的教材,都可以作为鉴定医疗机构是否存在过错的判定标准;同时,可以从专业医学文献上获取在当时医疗水平的条件下某种疾病出现损害后果的概率来量化"疾病参与度",以此确定医疗机构在医疗损害中的责任程度;鉴定人出庭作证所作的陈述应该是鉴定意见的补充,具有和"鉴定意见"同等的法律效力,可以用其来否定原本的鉴定意见;可以参照证人出庭的支付原则及费用标准,向鉴定人支付出庭费用,并通过各种安全措施保障鉴定人安心出庭作证。

In order to ensure the implementation of the requirement for appraisers~ appearing in court which is regulated in the new Civil ProCedure Law in judicial practice, the following content which is not involved in the law should be specified： the medical staff or the group leader of the expert appraisers may serve as a witness at court; the hygienic standard which is regulated in Clinical Operation Technological Specification, in Clinical Guidelines and on the National Health and Family Planning Commissionls official website and the textbooks in higher medical colleges and universities may serve as a criteria to judge whether there is a fault for medical institutions; meanwhile, the probability of injury consequence of some disease under the condition of medical level at the time in medical literature may be used to quantify ＂Disease Involvement＂, thus medical damage liability of medical institutions can be determined; the appraisers~ statement in the court should be a supplement to the expert opinion, have the same legal effect as the expert opinion, and can be used to deny the original appraisal; the appraisers may be paid with reference to the payment principles and standards of witness＇ appearing in court, and a variety of security measures should be taken to guarantee them to testify in court without any worry.