医疗纠纷“限额私了”条款评价及改进建议

摘要

The amount-based restriction of negotiation in private when resolving medical disputes is quite com-mon in much local legislation.This kind of provision is legitimate in general, because the rights and interests it pro-tects overweigh those it limits, and the measures it takes are proper.However, there are several flaws.Firstly, as a provision which impairs the rights of citizen, the level of legislation and legal effect need to be upgraded.Secondly, the set of the amount of limitation is arbitrary.Thirdly, differential treatment of public and non-public medical insti-tution in the provision cannot be justified;it actually shows confliction between different government functions.Last-ly, blindly limitation of negotiation in private has neglect something important, that is the self-government functions behind autonomous disputes settlement mechanism.Based on these flaws, several improvement suggestions are pro-vided.%许多地方立法规定了公立医院只能在一定限额内与患者以私了方式解决医疗纠纷的条款。这类条款保护的权益超过了限制的权益，手段也适当，因此在大体上具有正当性，但是存在一些问题：作为减损权利的规范，其立法层级和法律效力都有待提高；私了限额的设定存在任意性；区别对待公立和非公立医疗机构不具备正当理由，实质上体现了政府职能的竞合；另外，一味限制私了忽视了自主型纠纷解决机制的自治功能等。本文针对这些问题，提出了改进立法的建议。