【摘要】 医疗事故属于医疗执业侵权。医疗执业侵权中医方的过失来自于其违反了法律要求的照护义务。美国的医疗执业侵权法从“医疗常规标准”已经发展出了“群体接受的标准”,以及在此基础上的过失认定原则。在程序上,美国的原告依赖于专家证人举证证明医方过错。我国的医疗事故诉讼的过失标准是“医疗常规标准”,存在着许多法律缺陷;程序没有专家证人制度,但实行单一举证责任倒置。事实上,过失的认定上交给了医疗事故技术鉴定,成为了医疗事故诉讼的核心。“医疗常规标准”和举证责任、医疗事故鉴定存在很多法律上的冲突。医疗事故鉴定和医疗事故诉讼间的关系,现有法律存有许多待讨论的问题;鉴定人的欠缺法律责任的规范。但现有达到专家辅助人和可能有的医学专家充当陪审员,很可能有助于解决我国医疗事故诉讼中的专业问题。更多还原

【Abstract】 Negligence in medical practice comes from violation of applicable standard of care. Such standards in common law of U.S.A have evolved from customary practice to acceptable practice, which accommodate the need of new development in clinic medicine, along with several doctrines governing establishment of negligence in malpractice. As in civil procedure, plaintiff-patient’s expert witness plays the role of establishment of the applicable standards of care and the violation thereof on defendant-physician’s part. In china, the substantive standards are the customary ones which have several flaws, and in proceeding, there is no such an expert, but the burden of proof of no-fault is otherwise uniformly laid on defendant-physician’s part. However, as a matte of both law and fact, the establishment of negligence is dependent upon verification by medical association, which is of paramount importance. The customary standard is in many aspects in conflict with burden of proof and verification system. As to the legal relationship between such verification and the proceeding, the accountability thereof on designated professional group who carry the verification, is open to debate. But ancillary professional witness and the possible professional assessor may shed auspicious light on professional requirement of this type of lawsuit.更多还原