Comments On The Tort Liability Law Apply To Overtreatment

Excessively medical problems had been proposed by academic circles in our country in2003.It was released in April2009,"The central committee of the communist party of China the opinions of the state council on deepening the reform of medical and healthy system". Government departments strengthen further basically medical service system, medical security system, security of providing drug system, the medical reform,healthy management system and operational mechanism. However, the reform does not to propose specific solutions about excessively medical treatment, and it still exist the phenomena of excessively medical treatment in March2012. Chen Wanzhi again submitted to the suggestions of curbing excessively medical treatment, which advocates "medicine separation" and strengthens the reform of medical management system in the National People’s Congress of the11th National People’s Congress fifth conference. In March2013, the CPPCC has focus on the reform of the medical and healthy system. Huang Jiefu,who is the CPPCC National Committee and the vice minister of health, has said the government of the public hospital financial investment is not enough,90%of its revenue must rely on the hospital service fee, so that leading to excessively medical behavior and excessive examination etc. Excessively medical disputes will be involved in the patient’s body and health right, even life or other important right, but it has negative effects on the medical institutions, and it is not conducive to the development of China’s medical and health and improving socially healthy care."Of the People’s Republic of China tort liability law"(herein after referred as the "tort liability law")of the article sixty-three specifically points out the excessive examination as infringement, but it has not yet made corresponding provisions of assuming the tort liability, and unnecessary examination can not conclude these three forms of excessively medical treatment too much medication, surgery, excessive care.The article mainly researches on application excessive medical problems on the tort liability act, determining the infringement of the excessive medical behavior, implements the fault liability principle, adjustments of the tort liability act.The article consists of three parts. The first part mainly is an overview of the excessively medical tort liability. Firstly, scholars of the economics, medicine, medical ethics, law in the analysis of the excessively medical knowledge. The article will be defined as excessively medical treatment. The part illustrates the general forms of excessively medical behavior and judging standards. Secondly, this part discusses the nature of the excessively medical tort. The article argues the excessively medical dispute legal relation belongs to the civil legally relationship; part for excessively medical disputes that scholars believe it’s the breach of contract and tort competition, responsibility can be investigated on the basis of infringement or breach of contract. The article is based on two reasons, in general, which excessively medical behavior of infringement is much better for patients. It’s a medical contract, because of the particularity of medical behavior. Its content is uncertain, in order to determine the prescriptions in breach of contract usually has no concreting basis; it is as a tort much better and more comprehensive repair damaged the interests of patients, it may request compensation as mental damage. Forming of medical tort over the specific construction is mainly divided into two categories: positive excessively medical treatment and negative excessively medical treatment.The second part is the main body, the core content of the whole article, is about the excessively medical infringement analysis. This part is based on the tort liability act, the main body of the excessively medical tort, constitutive requirements and imputation’s principle are analyzed by this paper, using "four elements" to analyze the excessively medical tort constitutive requirements, such as illegal, damage fact, causality and subjective fault.The third part is mainly about the determination of excessively medical tort civil liability. The part mainly discusses the determination of its civil liability and compensation for damages. The civil liability way concludes, besides money damages, eliminating the danger, etc..The liability for damage mainly property damage compensation and damage compensation liability and personal, spiritual damage compensation.Discussed in this paper, with the above three parts, trying to from the perspective of infringement to comb of excessively medical treatment, to clear its qualitative. The constitutive requirements of the excessively medical tort put forward the principle of imputation, liability and responsibility as identified. Expect this research can help to solve excessively medical treatment of the doctor-patient dispute and to contribute to improve the excessively medical tort theory.