Analysis On The Excessive Medical Treatment Tort Liability

Recent years have witnessed the increasingly prominent excessive medicaltreatment. On one hand, excessive medical practices seriously infringes upon thelegitimate rights and interests of patients; on the other hand, it adds to the waste ofmedical resources. Article63in Tort Liability Law of People’s Republic of China(hereinafter referred to as the "Tort Liability Law") provides that "A medicalinstitutions and its medical staff shall not conduct unnecessary examination inviolation of the procedures and standards for diagnosis an treatment", which manifestslegislators’ attention to this problem. However, this provision only contains thelanguage of the unnecessary examination but does not lay down any expression ofburden of liability of tortfeasors, which can only be a nowhere near the revolution tothe overtreatment infringement. The author analyzes the present overtreatment tortliability and tries to put forward reasonable proposals for the future revisal of "TortLiability law", in anticipation for the better and reasonable protection of the interestsof both doctors and patients.This paper adheres to the impartial principle of balancing the interests betweenthe medical institutions as well as their staffs and the patients in the process of writing.The author deeply knows that legislation is outcome of the game of the interests. So integrating legal theory and reason, I analyze the interests of both doctors andpatients comprehensively to finalize my point of view, which is entirely according tothe above rule.The structure of this paper is as follows:In preface, I briefly introduce the detriment and regulation status of excessivemedical phenomenon. The current difficulty of the regulation over excessive medicaltreatment includes: a) there is no comprehensive knowledge and no reasonabledefinition of medical overtreatment tort in the academia; b) there is significantdeficiency in the article63in "Tort Liability Law"; c) there is not yet a consensus onthe imputation principles of medical overtreatment tort; d) it is unreasonable togenerally apply "causal relationship" to the constituent elements of cause and effect inthe medical overtreatment tort; e) the degree of proof of burden of negligence inmedical overtreatment tort is not clear.The first chapter, based on the analysis of all the current perspectives, poses mypoint of view of excessive medical treatment and redefines this behavior.The second chapter analyzes the chapter VII of "Tort Liability Law"comprehensively and arrives at the conclusion of necessity of separate provision ofexcessive medical treatment. Thus, by listing various forms of excessive medicaltreatment, it further proves that current provision is not comprehensive, which isrationale for the legislation proposals.Chapter III, Chapters IV and V elaborate the imputation principle, cause andeffect rule and burden of proof of negligence which are mentioned in the preface.These chapters first employ the method of comparative law analysis, and the methodof interests balancing, and then analyze the existing theories, and finally reach myconclusion, which is that the imputation principle should adopt the doctrine ofliability for fault, causation apply the doctrine of presumption of a causal relationship,and proof of negligence adopt lessened patient’s burden of proof and "perceivedevidence rule".The sixth chapter, according to the previous chapters, puts forward legislationproposals and submits a revised draft. The epilogue concludes this whole paper and restates the principle of interestsbalancing, and in the meanwhile poses its further anticipation for the resolution of thisproblem. I have a full confidence for the healthy, rapid and stable development ofmedical cause in China.