Study On Overtreatment Tort In Medical Institutions

The phenomenon of overtreatment exists generally in the medical field of our country and even the world and has become the leading cause of medical disputes. Except for a serious violation towards the patients’ life&health rights and property rights, such phenomenon brings forth an increasingly tensioned relationship between physician and patient as well. Overtreatment causes severe consequences and has been seriously concerned by our legislative departments. Although relevant prohibition regulations is launched in the Article63of national "Tort Laws", the laws have no practical significance, neither completely covering the main forms of overtreatment nor providing compulsory liabilities about overtreatment, and thus cannot effectively regulate the phenomenon of overtreatment. Given that, the research about overtreatment at the legal level is of much importance.This paper is divided into four parts.The first part is the analysis of main causes about overtreatment appeared in medical institutions. The paper points out that there are various aspects leading to excessive medical reasons. It is a problem concerned by medical and legal fields and a problem with social complexity and complicated reasons. This part discusses the five important reasons in the author’s opinion and points out that the main causes may include propelling of economic interests, avoiding liabilities about medical damage, imperfection of laws and regulations and thus providing information about discussion of overtreatment solving in the following paragraphs.The second part aims at studying the identification of overtreatment in medical institutions. This part is the core of the paper and focuses on the research about degree of overtreatment in identifying standard, identifying subject and identifying procedure. identified the main and cognizance program. In the part of identifying standard, the author firstly analyzes the main difficulties remaining in the judgment of overtreatment and puts forward the principle of "combination of objective standard and subjective standard" as the identifying standard, which is put forward for the first time in theoretical research of China and as one of the main innovative points. In the part of identifying subject, the author considers the Chinese Medical Association as the identifying subject of overtreatment and the Expert Group organized by the People’s Court as the supervising subject, so as to strengthen the justice of the identifying consequence. In that part of the identifying procedure, the paper successively gives introductions about the launching of identifying procedure and the specific identifying procedure and discusses the justice in the identifying procedure as well. The third part discusses the civil liability of the overtreatment in the medical institutions. Firstly, the paper analyzes the legal nature of the overtreatment and points out that the overtreatment is a kind of tort in its nature. Then the paper discusses the criterion of liability, extent of compensation and defense of the overtreatment.The fourth part is the conclusion of the paper, giving judicial advice on perfecting the relevant laws and regulations and suggestion on solving the problems appeared in the practical procedure of identifying the overtreatment as well.