论强制医疗责任保险的法理基础及制度建设

Discussion on Legal Basis and Institutional Construction of Compulsory Medical Liability Insurance

我国《侵权责任法》对医疗损害行为确立了"过错责任为基础"的归责体系,这在设计模式上存在一定局限性,即囿于单一的损害赔偿的藩篱而无法完全填补患者所遭受的医疗损害。为消弭侵权责任法调整的局限,笔者以医疗损害归责体系为逻辑路径,引入以风险责任为基础的责任分散方式来弥补侵权法化解的局限性,并在此基础上建立统一的强制医疗责任保险制度,进而实现对医疗损害风险有效分散,实现对医疗损害责任的正义分配,从而使医患关系回归至"医乃仁术"的正途中。

The ＂Tort Liability law＂ established the behavior of medical damage fault liability based responsibility system, which has some limitations in the design mode, that is confined to a single way of damages does not completely fill the barriers patients suffered health damage. To eliminate the limitations of tort adjustments, the author of the medical harm rule system as a logical path, the introduction of risk - based liability responsibility in a decentralized manner to compensate for the limitations of tort law to resolve, and the establishment of compulsory medical liability insurance system on this basis, and then decentralized health risks to achieve justice in the distribution of medical damage, so doctors and patients to eliminate obstacles to the return to the ＂Medical is Humanity＂ are on the way to the doctor- patient relationship.