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《侵权责任法》第五十九条规定医疗机构须对药品缺陷承担不真正连带责任。该规定的立论基础并不妥当,其错误地将医疗机构定为药品销售者,与我国医疗体制改革之“公益性”方向相悖,违背“责任自负”原则。应按医疗机构对药品缺陷之控制力程度,将医疗机构的药品缺陷责任类型化地规定为四种:1.医疗机构对其生产的“医疗机构制剂”承担无过错责任;2.医疗机构对其药品采购、保管等行为承担过错推定责任;3.医疗机构对其诊疗服务过程中的用药行为承担过错责任;4.医疗机构对其不可控的生产者、销售者造成的药品缺陷不承担责任。
Article 59 of the Tort Liability Law stipulates that medical institutions shall not be jointly and severally liable for drug defects. The basis of this provision is not proper. It mistakenly defines the medical institution as a seller of pharmaceuticals, contrary to the principle of “public welfare” and the “principle of responsibleness at the sole risk” of the medical system reform in our country. Medical institutions should be based on the degree of control of drug defects, the medical institutions of the drug defect liability type defined as four: 1. Medical institutions for their production of “medical institutions” assume no fault liability; 2. Medical 3. Institutions bear liability for wrongfulness in the procurement of drugs and custody; 3. Medical institutions bear fault liability for drug use in the process of their diagnosis and treatment; 4. Medical defects caused by medical institutions to uncontrollable producers and sellers Take responsibility.