我国医疗损害鉴定人出庭质证问题研究

The Issue of Medical Damage Identification of Person in Court

医疗损害诉讼案件的专业性极强,纠纷往往涉及医疗行为是否存在过错、医疗行为与损害后果之间是否具有因果关系等,这都需要通过鉴定予以明确。目前我国医疗损害技术鉴定存在的问题较多,相关法律、规范及司法解释不是十分明确,导致鉴定人出庭质证在司法实践中落实不到位,出庭质证效果不好,鉴定人以工作繁忙、出庭费低、人身安全没有保障等理由制造出庭障碍等。专家辅助人和技术调查官制度的建立有利于提高鉴定的科学性、中立性和专业性,但鉴定人、专家辅助人和技术调查官在司法实践中仍然存在许多问题。出庭质证后的具有科学性、公正性的医疗损害鉴定意见应当作为定案依据,存在瑕疵的医疗损害鉴定意见可以补正说明或者补充鉴定,不具有科学性、公正性的鉴定意见应当予以排除,或者启动重新鉴定。应完善鉴定人交叉询问规则,加强法庭质证功能,提高律师的质证能力,提升鉴定人出庭质证技能。

Medical malpractice litigation cases are highly professional, and all disputes involving whether there are counts in the medical behavior or not and whether there is a causal relationship between medical behavior and damage,etc., need to be clear through identification. At present, there are many problems in our country＇s medical damage identification and the relevant laws, regulations and judicial interpretations are not very clear, leading to a result that the condition of judicial experts appearing in court in judicial practice does not meet expectations, that the effect is not good,that there are a lot of issues in court and that expert witnesses make court obstacles by means of busy work, low court fees, personal safety and other reasons, etc.. Although the establishment of expert assistant and technical review officer systems is advantageous to further improve the scientific, neutral and professional identification of the technical facts, there are a number of problems among the expert witness, the expert assistant and the technical review officer in judicial practice. After cross-examination, there are three circumstances that the medical damage appraisal opinions of science and fairness shall be verdict basis, that the medical damage appraisal opinions having defects would correct description and supple identification, and that the medical damage appraisal views which are not scientific and fair should be excluded or restarted.. In summary, the identification of the cross examination rules should be improved. Meanwhile the quality of the court＇s evidence should be enhanced; the quality of the lawyer＇s ability should be developed; the testify skills of expert witness appearing in court should be raised.