关于医疗侵权诉讼的举证责任倒置.pdfVIP

目 录 中文摘要 ···················································2 英文摘要 ···················································4 引 言 ····················································6 正 文 ····················································7 1 医疗侵权诉讼的概念和特点···································7 1.1 医疗侵权诉讼的概念·······································7 1.2 医疗侵权诉讼的特点·······································7 1.2.1 高度专业性·············································7 1.2.2 患方维权意识增强，但案件数量趋于平稳 ····················7 1.2.3 诉讼成本高 ·············································8 1.2.4 适用法律无统一标准 ·····································8 1.2.5 审理难度大，依赖于专家鉴定 ······························9 2 医疗侵权诉讼的举证责任分配·································9 2.1 举证责任概述 ·············································9 2.1.1 举证责任的概念和特征 ···································9 2.1.2 举证责任的分配依据 ····································10 2.2 我国医疗侵权诉讼的举证责任分配原则 ······················11 2.3 国外医疗侵权诉讼的举证责任分配原则······················13 2.3.1 美国医疗侵权诉讼的举证责任分配原则 ····················13 2.3.2 德国医疗侵权诉讼的举证责任分配原则 ····················14 2.3.3 日本医疗侵权诉讼的举证责任分配原则····················15 2.3.4 国外医疗侵权诉讼举证责任分配原则的比较················16 2.4 医疗侵权诉讼采用举证责任倒臵的重大意义············16 2.4.1 保护弱势群体、平衡举证能力 ·····························17 2.4.2 降低诉讼风险、实现诉讼公平 ·····························17 1 2.4.3 强化医疗管理秩序、促进医疗事业的规范化 ·················18 2.4.4 提高司法效益、降低司法成本·····························18 2.4.5 缓解医患双方的矛盾、改善医疗执业环境 ···················19 3 正确理解和适用举证责任倒臵 ································19 3.1 医疗侵权责任的构成要件··································19 3.1.1 存在医疗违法行为 ······································20 3.1.2 存在医疗损害行为······································20 3.1.3存在主观过失 ··········································20 3.1.4 违法行为与损害后果之间存在因果关系 ····················20 3.2 医疗损害行为的免责······································21 3.2.1 为抢救垂危患者生命而采取紧急医学措施造成不良后果的 ····22 3.2.2 由于患者病情异常或者患