医疗损害鉴定制度的挑战与反思

Challenge and Reflection on New Medical Damage Appraisal System

中国医疗损害鉴定制度经历了卫生行政部门主导的、双轨制并存的、名称上统一的医疗损害鉴定制度之后,目前又呈现为诉讼前后分立的两阶段、且医学会与司法鉴定机构均可参与的鉴定体制.在长久改革及当下制度框架内,医疗损害鉴定制度存在患者话语权保障的严重失衡、诉讼前后鉴定制度有待衔接及专家辅助人质证规则亟待建构的困境,建议鉴定中设置患者优先决定的听证制度、完善诉前无争议事实的记载制度,建构专家辅助人质证意见的有限规则及专家辅助人救济制度.

Medical damage appraisal in China is currently in two-stage with dual-track system which is characterized by named as pre-trail appraisal and post-litigation appraisal,and medical association as well as appraisal agency can conduct medical damage appraisal as before.In the long-term reform period and current framework of legal system,medical damage identification system has confronted some major problems,including serious imbalances in protection of patients'voice,and pre-trail and post-litigation identification system connection rules and expert-assistant cross-examination rules needing to be constructed.It is recommended that we should set patient-priority determined hearing system in appraisal system and improve record system of uncontroversial facts before prosecution and construct limited adopted rules of expert assistant opinion as well as expert assistant relief system.