法律制度变革对医疗诉讼各方行动逻辑的建构及反思--基于D市6家三甲医院404例诉讼案例的实证考察

The reform of legal system on the construction and reflection of the logic of actions of all parties in the medical litigation:An empirical study of 404 cases about 6 three-A hospitals in D city

以D市6家三甲医院2009—2014年的404例医疗诉讼案件的司法裁判信息为样本,发现在以《侵权责任法》实施为代表的法律制度变革中,医疗侵权诉讼明显增加,鉴定比率下降,简易程序和调解适用较多且索赔成功率高,调解化倾向严重。这主要是因为,旨在统一医疗损害诉讼法制格局的法律制度变革,淡化了诉前纠纷解决机制,提高了当事人诉讼索赔期望值,通过举证负担加重了患方申请鉴定的成本,增加了法院裁量权但没能适时提高其专业审判能力,进而影响了诉讼各方的行动逻辑。基于上述考察,未来应进一步正视第三方诉前纠纷解决机制在医疗纠纷中的作用,以举证缓和的方式平衡医患举证负担,完善调判分流的程序分流机制以加强损害赔偿程序的科学性。

Taking the judicial reference information of 404 cases of medical litigation from the 6 three-A hospitals from 2009 to 2014 in D city as the sample,it was found that in the reform of the legal system represented by the implementation of the Tort Liability Act increased the number of medical tort litigations obviously;Decline in appraisal rate,more summary procedure and mediation apply and its high success rate in claim for compensation,serious mediating tendency and decreased hospital s attention to medical litigation have conflicted with the authoritative,efficient,fair and reasonable goals that institutional changes are intended to achieve.This is related to the harmonization of the legal pattern of medical damage litigations as it lessens the dispute resolution before litigation and changes litigation expectations of the litigants aggravate the burden of evidence from applicants,especially the cost of applying of appraisal,increases the discretion of courts,but failing to improve its professional trial capacity in a timely manner.Based on the investigation of the influence of institutional changes to the logic of operations,the role of the third-party pre-statement dispute resolution mechanism in medical disputes should be further addressed in the future to balance the burden of evidence-relieving methods with the burden of doctor-patient evidence in the form of ease of proof and to improve the procedural diversion mechanism for conciliation and the diversion should be improved to strengthen damages to make the compensation procedure more scientific.