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Comments On The Tort Liability Of Overtreatment

Posted on:2013-07-29Degree:MasterType:Thesis
Country:ChinaCandidate:Z H CengFull Text:PDF
Abstract/Summary:PDF Full Text Request
In recent years, excessive health care issue has become a hot topic of concernand focus of the community generally, and the contradictory relationship betweendoctors and patients has become increasingly acute. Excessive medical treatment isboth to the citizens’ right to life, right to health and physical power, and other relatedrights. it is also related to survivaland development of medical institutions, evenrelated to the progress of medicine and even social stability. This paper attempts todiscuss from excessive medical tort liability point of view, and explore the elementsof excessive medical tort liability attributable to the principles and disclaimer subjectto reasonable allocate responsibilities between medical institutions and patients,andprotect the harmonious development of the physician-patient relationship. This articleis divided into four parts: The first section explains the concept and its manifestationof overtreatment, and analysis of excessive medical treatment and proper medicalcareto optimize the differences in health care; The second part finds from thejurisprudential excessive medical treatment and analysis of relevant concepts forcopyright infringement reasons, and reveal the external manifestation of excessivemedical tort; The third part discusses the constituent elements of excessive medicaltort and the burden of proof;The fourth part discusses the excessive medical tortliability and Disclaimer.Address the excessive medical problems, we must first define the concept ofexcessive medical,and understand the implementation of the so-called excessivemedical treatment refers to medical institutions and medical personnel beyond thenormative medical standards, personal and socio-economic ability to bear the medicalpractices or medical procedures.At the same time we know that excessive medicaltreatment and proper medical care, and optimal medical difference lies in the fact thatthe medical practices of the medical staff compliance with the affordability of socialand personal, whether to protect their best interests.Chinese law experts generallybelieved that excessive medical practices in competing liability for breach of contract and tort liability,in order to better protect the interests of patients, I would beexcessive medical identified as infringing.The complexity of the problem ofexcessive medical tort requires excessive medical treatment infringement in the legalanalysis must be multi-pronged approach.First of all,in the behavior of the mainsquare,bear excessive perpetrators and responsibility of the medical tort sometimesdivide and sometimes together, it should be carefully distinguished in a specificinfringement.Secondly, how to determine the excessive medical tort prerequisite forhealth care obligations? Given the special nature of the particularity of the medicalindustry and medical institutions,a source of obligations of the medical staff informthe career requirements of the obligations, and reasonable treatment obligations,medical institutions, the public welfare of the medical practices of the binding. Again,medical personnel for medical obligations held by the state of mind resulting inexcessive medical tort behavior also showed positive over medical and negative overhealth care.The above is a preliminary understanding over medical tort jurisprudence,andin order to further accurate and profound understanding of excessive medical tortitis also necessary to distinguishwith other related concepts. So this article also detailedanalysis of the difference between infringement of excessive medical treatment andexcessive medical treatment, medical malpractice, medical damage.In order to complete understand the excessive medical tort, it must studytheElements of the tort. Reference to China’s relevant laws, excessive medical tort is thegeneral tort, and it should have harm behavior, damage to the facts, causalrelationship between the subjective fault of the four elements.From harmbehavior,due to the infringement of the particularity, harm behavior must occur in theprocess of medical activities, andthe premise is a violation of the diagnostic andtreatment practices, or related medical obligations.Damage to the fact that aparticularity of violations of the personal interests of patients from the analysis ofexcessive medical treatment, property interests and spiritual interests and lookforward to the interests of, for excessive medical tort interests.Causal relationshipbetween excessive medical tort judgments is difficult,and this paper tries to discussconditions, a considerable and complex nature of three.Excessive conditions ofperformance of the medical tort causal relationship between the medical staff of medical behavior and the consequences of the damage whether the inevitabilitycontact.If the behavior of the medical staff does not necessarily result in damage, orjust a weak damage, then the condition of significance is manifested.The equivalenceis closely related to the conditional, quite the significance of the causal relationshipbetween excessive medical tort is to be investigated for the medical staffresponsibility should be limited, we can say is an affirmation and protection of thelegitimate medical practices of the medical staff.The complexity of the causalrelationship between excessive medical tort reflect consideration for the temporal andspatial factors, patient’s own factors, medical personnel, individual factors and otheruncertainties. The analysis of this complexity tends to protect the legitimate rightsand interests of the medical staff, this is also the desire to explain the gist.Excessivemedical tort general tort subjective fault is an investigation and elements,andobligation to inform the medical staff and the analysis of the obligation to contributeto an accurate understanding of the subjective factors of excessive medical tort to acorrect understanding of the tort.Generated by excessive medical tort liability appliesto the fault principle is reasonable, as the fault of the principles apply to the specialform of the presumption of great value. I finally assume disclaimer to the harmoniousdevelopment of the rational allocation of responsibility between doctors and patientsto protect the doctor-patient relationship.
Keywords/Search Tags:Excessive medical infringement, Causal relationship, Criterion of liability, General Defenses
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