人工智能视野下医疗损害责任规则的适用和嬗变

Application and Adjustment of Medical Damage Liability Rules from Perspective of Artificial Intelligence

医疗是人工智能落地最早、发展最快也最特殊的领域,各国纷纷立法予以专门应对。人工智能悄然改变着医疗决策的过程和结果,"人工智能决策-医生验证复查"的模式将成为常态,这冲击着传统的医疗损害责任规则;人工智能的自主性等特征使得受害患者依现行规则寻求救济的难度大大增加;医疗人工智能的特殊法律定位及差别对待原则,也要求对我国现行医疗损害责任规则予以适当调整。在弱人工智能下,我国应增加过错证明的法定推定事项,降低因果关系的证明标准,对医疗产品责任主体予以相应调整,设置缺陷证明的法定推定事项,并适当调整免责事由。在强人工智能下,我国应采行过错和因果关系推定制度,并通过设置医疗强制责任险、医疗产品强制责任险及赔偿基金对受害患者进行充分、及时的赔偿,实现风险的社会化分散。

Medical treatment is the earliest, fastest growing and most special field in which artificial intelligence is used. Countries around the world respond to it through legislation. Artificial intelligence is quietly changing the medical decision-making process and the results. The mode of "AI decision-making + doctor reviewing" will become a regular practice, which will have strong impact on conventional medical damage liability rules. The autonomy of AI makes it more difficult for victims to seek relief according to current rules. The special legal position of medical artificial intelligence and the principle of differential treatment also require appropriate adjustment of current medical damage liability rules in China. With weak AI, we should increase the items of legal presumption of fault, reduce the standard for causality proof,adjust the subject of medical product liability, set up statutory presumptive items for defect proof and appropriately adjust exemption items. With strong artificial intelligence, we should adopt fault and causality presumption system, set up compulsory medical liability insurance, medical product compulsory liability insurance and compensation fund to ensure adequate and timely compensation for victims and social dispersion of risks.