Research On Legal Regulation Of Excessive Medical Care

The unnecessary check is banned for the first time by The Tort Law of the People’s Republic of China, showing the determination to regulate the overtreatment by law. But at present, the legal regulation of overtreatment is still hard because of the different views on the definition, judgment of the overtreatment. This thesis researches on the overtreatment based on the Tort Liability. It takes the research methods, such as hermeneutics, sociology, summary analysis, combining theory with practice, to explore the definition, type and legal nature of the overtreatment, and further clarifies the’constitutive elements and the judgment standard of overtreatment tort. And then the thesis describes the legislative defect and practical obstacle according to the current situation of the overtreatment and its legal regulation in China. After an analysis on causes of the overtreatment and the necessity of the legal regulation, the specific measures, which is hoped to benefit the judicial practice, such as improving the legislative and institutional system, broadening the channels of legal remedies, are putted forward.Chapter One is the summarization of the overtreatment. There are several concepts of the overtreatment in the academia. First, the thesis comments on those concepts objectively and rationally, and denies their accuracy. Then the author distinguishes the overtreatment with appropriate medicine, defensive medicine, and fraudulent medicine in order to define precisely the overtreatment, which including the positive defensive medicine. The other parts of the chapter1are about the types and harm of overtreatment.Chapter Two is about the general theory of overtreatment. First of all, based on affirming its civil legal relationship, the author analyzes the theoretical basis of liability, and demonstrates its tort attribution. Second, the thesis particularly describes the constitutive elements of the overtreatment tort. The third part is the core of this chapter, which is also the important part of the thesis, namely the judgment of overtreatment. In this part, the author put forward the subjective and objective criteria creatively. The former is expert’s high duty of care and the latter is the diagnosis and treatment specifications, which are not limited to the codified legal documents. The approach to judge the overtreatment is appraisal, which is approved its feasibility by the case in the thesis. In the light of the different consequences of the overtreatment, the author analyzes the corresponding procedures of appraisal. The last part of the chapter, the author demonstrates the fact that overtreatment violate the rights and obligations of the doctor-patient relationship, including invading the patients’personal and property right, proper medical right, informed consent right, self-determination right, and the doctors’informing obligation and duty of loyalty.Chapter Three focuses on the investigation of overtreatment and its status of regulation in our country. With The Tort Law promulgated and implemented as a demarcation line, the author discusses and analyzes the legislative situation of overtreatment. Before The Tort Law, there is no legislation about the overtreatment, excessive check, or unnecessary check, although related concepts have been involved in some normative documents, which can’t become the legal basis to regulating the overtreatment, because of its non-legal attribute. Compared with the progressive clause of overtreatment in The Tort Law, its scope, legal consequences and such on are worthy of discussion. Secondly, the author makes further consideration and research on the puzzles and obstacles in practices, mainly about the burden of proof, appraisal, lack of unified standard and concurrence with the liability of infringement upon the patients’informed consent right. In the case of concurrence between overtreatment tort liability and informed consent right tort liability, the patients can choose either as the legal basis of claim, and while the one fails to play a role in relief any more, the other can act as a supplement to increase the way and possibility of help patients protect their rights. Finally, the author talks about the causes of overtreatment, such as affected by the traditional doctor-patient relationship model, the drawbacks of the medical and health management system, doctors’ intention to evade liability for medical damage, and patients’ irrational ideas of medical treatment.Chapter Four is about the improvement of legal regulation of overtreatment. It firstly expounds the necessity of legal regulation from the view of judicial practice, doctor-patient relationship, and development of medical and public health services. Secondly, the author suggests perfecting the law system through the following ways, which are explaining the article63of The Tort Law, in order to cover all kinds of overtreatment; Speeding up the establishment of The Medical Law, in order to clearly define the rights and obligations of both doctors and patients; Making a set of scientific and feasible, guidable and legalized diagnosis and treatment specifications, guide, or clinical pathways, in order to provide the uniform and authoritative criteria. Thirdly, some methods are recommended to take to standardize and enrich the legal relief, such as constructing independent medical appraisal system, easing burden of proof system conditionally, and advocating using non-lawsuit way to solve the medical dispute. Finally, the thesis proposes to control and regulate the overtreatment by the following measures, including establishing the medical information disclosure system, increasing government’s investment in public finances, improving the medical insurance system, and strengthening the social autonomous organization.The legal regulation of overtreatment is in the initial stage and developing gradually. Through the continuous improvement in legislation and practice, it will have important significance of the protection of patients’rights, constraint of doctors’behaviors, and relaxation of the doctor-patient relationship.