临床误诊误治2011，Vol.24Issue(11)：95-98,4.
如何正确实施医疗过错推定制度——对《侵权责任法》第五十八条的理解
Implementation of Fault-Presuming System: Understanding of Article 58 of the Tort Liability Law
摘要
Abstract
The Tort Liability Law stipulated in Article 58 medical fault-presuming system for the first time by legal form. And how to exactly implement this system is medical institutions and legal workers'important subject. The article argues that, firstly, the fault-presuming prescribed in Article 58 is rebuttal and limited legal presuming system. It reasonably balances the interests of both medical institutions and patients, and also maintains the social benefits. Secondly, medical fault-presuming system should be enforced exclusively by the court, and the legal consequence is that the defendant has to prove that there is no existing negligence. Finally, the stipulation mentioned in the first item of Article 58 should be confined to relevant medical norms and applied only to cases of the medical technology damage. But the circumstances mentioned in the second and third items belong to hindering evidence behaviors, hence, the existence of fault should not be presumed, but directly recognized.关键词
过错推定/利益维护/举证责任Key words
Fault-presuming/ Interests maintenance/ Burden of proof分类
医药卫生引用本文复制引用
朱根,王启辉,王晓东..如何正确实施医疗过错推定制度——对《侵权责任法》第五十八条的理解[J].临床误诊误治,2011,24(11):95-98,4.基金项目
江苏省医学人文社科基金(JSYRKJ2011-A2-002 （）
