论文部分内容阅读
国务院1987年6月29日发布的《医疗事故处理办法》实施后,医疗纠纷的处理走向了法制化管理的轨道,由医疗纠纷而引起的诉讼也不断增多。但医疗纠纷诉讼属民事诉讼抑或是行政诉讼及卫生行政部门在诉讼中的地位如何,在理论和实践上还颇有争议。本文就此进行初步探讨,供商榷。 医疗纠纷是指医疗单位和患者或其亲属,对是否因医疗失误而导致患者利益损害及医疗失误的性质、造成损害的大小而引起的争议。根据《民事诉讼法》、《行政诉讼法》、《医疗事故处理办法》等法律、法规,笔者认为:因医疗纠纷而引起的诉讼(不包括因医疗纠纷而导致的治安管理、追究刑事责任等诉讼)其性质一般应为民事诉讼,但在特定情况下可能是行政诉讼或行政机关内部解决的争议,其理由如下:
After the implementation of the Measures for the Treatment of Medical Accidents promulgated by the State Council on June 29, 1987, the treatment of medical disputes has come to the track of legalized management, and lawsuits caused by medical disputes have also increased. However, it is still controversial in theory and practice whether medical dispute litigation is a civil action or whether the administrative litigation and health administrative departments are in the litigation. This article will conduct a preliminary discussion on this, for commercial consultation. Medical disputes refer to the controversy over the extent to which medical units and patients or their relatives have caused harm due to the nature of the patients’ interests and medical malpractices caused by medical errors. According to the “Civil Procedure Law,” “Administrative Procedure Law,” and “Measures for Handling Medical Accidents” and other laws and regulations, the author believes that: litigation due to medical disputes (excluding the administrative management of public security disputes, investigation of criminal liabilities, etc.) Litigation is generally a civil lawsuit, but in certain circumstances it may be a dispute in an administrative litigation or internal resolution of an administrative agency. The reasons are as follows: