The Research Of The Tort Liability Of Excessive Medical

Excessive medical behavior is a common in medical treatment activity and long-standing malpractice and the tort liability law of the People’s Republic of China "(hereinafter referred to as the" tort liability law ") for the first time made clear rules for excessive medical behavior. But, the law still exist various problems, such as only the excessive examination has clear rules and regulations, lack of authoritative standard fault, the patentee lawsuit burden is too big and the shortage of rights by the infringer power. According to the above problem, academic circles to improve the excessive medical tort "tort liability law" put forward many Suggestions. Some scholars suggest that modifying the law or judicial explanation as soon as possible, so that the "tort liability law" can express to regulate all the excessive medical behavior; Also some scholars think that due to the "tort liability law" the existence of excessive medical behavior regulation is not comprehensive, imputation principle apply difficult problems, it is better to through to the relevant laws and regulations relating to excessive medical tort effectively adjusted. But the author believes that these are the "tort liability law" to a certain extent of misreading, to effectively solve the tort liability act the problems in the legislation and practice, and to promote the legislation progress of excessive medical tort in our country, we should base on the existing law present situation, carries on the reasonable and flexible interpretation, modification and apply.This article besides the introduction and conclusion, is divided into three parts, plan3. More than words.The first part, basic theory of tort prevue excessive medical treatment. This part is mainly on the concept of excessive medical treatment and composition, the two aspects of it excessive medical related basic theory, through the introduction to the theory of clear regulation on excessive medical behavior effectively and accurately problems needed attention.The second part, the tort liability law applicable to present situation of excessive medical treatment and its shortcomings. This part firstly with the method of legislation in contrast with the past, to clarify the "tort liability law" of China’s current basic rules of excessive medical tort regulated, including:the act of tort liability can be adjusted in accordance with the law all the excessive medical tort; Excessive medical tort only apply the principle of fault liability; Medical institutions of ground defenses and relief mainly include one party does not violate relevant diagnosis and treatment of medical institutions specifications, according to the instructions and prescriptions, medical damage is caused by patients the cause of the party, etc.; The compensation scope includes property, personal injury compensation and spiritual damages. Then, this part puts forward of the tort liability act three defects:first, the current "tort liability law" the63th banned only excessive check this kind of medical tort, such behavior makes legislation, both the patient to the rest of the excessive medical tort not too seriously, this makes the "tort liability law" regulation all over medical tort legislation original intention. Second, the tort liability law lie in the imperfection of the imputation principles of the problem, which mainly includes the damages stipulated in the law and the concept of fault are not clear, lead to the patentee can’t clear what is excessive in practice in the medical tort damage and fault; Specification as fault in accordance with the standards of diagnosis and treatment without the authorization of legal authority enough, can’t become the standard of judging infringement of excessive medical treatment fault;"Tort liability law" regulate excessive medical tort only apply the principle of fault liability, although it can relieve excessive worry about the problem of litigation risk of medical institutions, to reduce the defensive medical treatment, but the principle of fault liability is actually increased the burden of the patentee, was suspected of bias in favor of health providers interests. Third, under the existing medical insurance system, medical insurance agency only for outpatient and inpatient reimbursement application for review form, this allows medical staff party think that even if excessive medical tort happens, the tort damage produced by itself is relatively small, so medical personnel would rather take the attitude of tolerance, also don’t want to side with medical institutions to produce too much contradiction and delay treatment, this will inevitably lead to the tort liability law is difficult to effectively regulate excessive medical tort. The third part, the tort liability law regulate excessive perfection of infringement of medical advice. This section of the tort liability law in regulating excessive medical tort existing problems put forward the following Suggestions:first, the "tort liability law" article54judicial interpretation, and express the comprehensive regulation of excessive medical tort, it can avoid to make legislative changes to your article63must go through the cumbersome and lengthy legislative modification process, and also can avoid for expanding interpretation of the article63against suspected problems of legislative intent. Second, perfect the imputation principle through legislative and judicial means. Mainly includes will damage is defined as beyond the "average" and pay medical expenses or suffer physical damage, the fault is defined as a lack of medical information recorded in the reasonable diagnosis and treatment of medical judgments is unnecessary on this basis, through the way of case guidance will be the content to a certain degree of publicity, in order to help the concrete practice of the imputation principles; Through legislation to clear mandate specialized agency compile authoritative diagnosis standard, specification and on the basis of the diagnosis and treatment in the nationwide promotion, guide the fault of excessive medical infringement; Introduced burden alleviation system, burden of proof system is different from the principle of fault presumption, it will not be in advance is hard and fast rules between medical institutions and medical personnel to the cognizance of the fault liability, fault presumption principle also changed the distribution of fault responsibility principle of fault liability of that), it is reasonable in the matter between the allocation of responsibilities, in order to make sure of the fault liability principle is not to worry too much about the litigation risk, medical institutions are also not make medical personnel lawsuit burden is too heavy. Third, improve the system of health care and the tort liability act. First of all, through specialized system build, make medical insurance institutions for outpatient and hospitalization expenses of the application for examination as to substance, in order to effectively identify the excessive medical tort; Second, if reimbursement medical insurance institutions to review the application of excessive medical tort, it must be in accordance with the law on the content of the review, and there is no excessive medical institutions is the medical tort for certain instructions; Finally, the above description can be as a party to a lawsuit evidence.