误诊现已成为医疗纠纷的最主要原因之一,对误诊所产生的法律责任是侵权责任还是违约责任学界有颇多争议。实践中多采侵权责任,违约责任因医疗契约的抽象性存在适用上的困难。我国现行法规均未对误诊做出具体的规定,为了改善医患关系,故而建议在侵权责任法中增加关于误诊的规定,将医疗契约典型化,明确医患具体权利义务。 Misdiagnosis has now become one of the most important causes of medical disputes. There is much controversy over whether the legal liability arising from misdiagnosis is tort liability or liability for breach of contract. Multiplicity of tort liability in practice, liability for breach of contract due to the abstract nature of the existence of medical contractual difficulties. In order to improve the relationship between doctors and patients, we propose to add the provisions on misdiagnosis in Tort Liability Law, to typicalize the medical contract and to clarify the specific rights and obligations of doctors and patients.