论医疗侵权之诉中患方举证责任的履行保障——以法官的适度能动司法为视角

On the Protection of Patients' Burden of Proof in the Case of Medical Infringement——From the Perspective of the Judge's Moderate Judicial Activism

在当前的医疗侵权诉讼活动中,法官往往局限于法律的明确指引而逃避不确定性条款的适用,从而导致案件久拖不决或以鉴代判、案结事未结,严重损害了司法权威。鉴此,在具体的医疗诉讼审判实践中,笔者建议法官应适度发挥司法能动性,依《侵权责任法》的基本精神对患方的举证责任进行合理阐释,运用司法职权保障患方的举证责任之有效履行,以及时、公正地处理医疗诉讼案件,维护医患双方的合法权益。

In current medical tort litigation activities, judges are often confined to clear guidance of the law and avoid the application of uncertainty clauses, which leads to a protracted case,using the expert opinion as the court decision, unsettled disputes and serious damage to the judicial authority, therefore, the judge should exert moderate judicial activism in specific judicial practice of medical litigation, they should interpret the burden of proof of the plaintiff reasonably according to the basic spirit of The Law of Liability for Infringement, and use the judicial functions and powers to ensure the effective performance of the burden of proof of the plaintiff. So, they can deal with medical lawsuits timely and fairly, and maintain the legitimate rights and interests of both doctors and patients.