论医疗损害责任的竞合

当医患之间存在医疗契约时,对于医疗损害产生违约责任和侵权责任的竞合。侵权责任说认为,医疗失败不能评价为契约违反,侵权责任在诉讼时效、损害赔偿范围及免责条款等问题上有利于受害人。违约责任说认为,医师对患者负有高度注意义务和忠实义务,医师违反此义务,就是违约,契约上的纠纷应以契约上的方法处理。本文认为,其实二者在归责原则、举证责任、免责条款、时效、责任范围等方面并没有本质的不同,受害人可以选择适用侵权责任或违约责任。

On Concurrence of Liabilities for Medical Injury

When there are medical contracts between hospital and patient,there will be concurrence of contractual liability and tortuous liability for medical injuries.The theory of tortuous liability holds that medical malpractice can not be rated as the breach of contract, and tortuous liability is advantageous to victims in limitation, scope of compensation for damage and special terms for exemption etc. The theory of contractual liability maintains that doctors should assume high duties of care and fiduciary, so doctors' breach of these duties will be rated as breach of contract, and disputes on contract should besettled by contractual means. In fact, both ortious liability and contractual liability are not substantially different in the respects of doctrine of liability fixation, burden of proof, special terms for exemption, limitation, and scope of compensation for damage etc. Victims may choose either of these two liabilities by themselves.