医疗过错认定依据研究——基于相关民事判决书的实证分析

Research on the basis of medical malpractice identification Empirical analysis based on relevant civil judgments

医疗过错的认定作为医疗损害案件中的核心问题,在司法实践中通常以鉴定意见、当时的医疗水平以及病例的制作和保管情况,作为判断医疗过错有无的具体判断依据,但鉴于医疗案件具有较强的实践性、专业性和复杂性,在判断和说理的过程中又常常会出现高度依赖鉴定意见、扩张适用诊疗常规、直接认定过错推定等不妥情形,面对其存在的问题,应当从完善医疗认定标准、丰富审判人员的医疗知识、完善审判组织人员结构等立法和实践的多重角度探寻出路。

Medical malpractice identification is considered as the key problem in medical damage cases.In the judicial practice, we usually judge whether the medical malpractice exists based on the following factors: experts’ opinion, medical practice, the quality of medical records and the medical level. But due to its relatively strong practicality, professionalism and complexity, there often appear some inappropriate problems in the process of judgement and reasoning, for example, highly depending on experts’ opinion, regular and direct diagnosis, fault presumption and so on. It is necessary to seek a way out from the aspects of legislation and practice, such as perfecting the standards of medical recognition, enriching the medical knowledge of judges and improving the personnel structure of judicial organizations.