The Research On Excessive Medical Tort Liability Issues

In recent years, with the rapid development of medical science and technology, coupledwith the interests of today’s market-driven health care system, excessive medical treatmenthas become a global problem, It is contradictory rendezvous health services currently. Itappears repeatedly "big check","big prescription" and "abuse of antibiotics" and so on, whichshow that the overtreatment phenomenon is very widespread recently. China’s "Tort LiabilityAct", Article63of the regulations, has been rising the excessive checking behaviors to thelegal level, but this law is not comprehensive, neither covers all forms of excessive medicaltreatment, nor the specific liability provisions of medical institutions and medical personnel inviolation of this provision assumed, it can not curb excessive medical practices from thesource. Therefore, it is extremely important to further studied the medical practice from thelegal aspects.Articles from the basic theory of excessive medical proceed, Pointing out that excessivemedical institutions and medical personnel in the medical activities in violation of thestatutory and contractual obligations to obtain improper economic benefits, providing morethan the actual needs treatment services to patients, so that it produced property damage andpersonal injury behavior to the patient. and on the basis of excessive medical concepts, itfocused on explaining the “overtreatment” of this form, the key to grasp the "degree" to judgethe excessive medical. the reason for "over" should not simply be attributed to medicalinstitutions, patients and social factors can not be ignored, Thus, this particular regulation ofthe medical excessive, The key is whether it is consistent with the principles and imputationelements of tort liability, which is the center of the article discussed. Responsibility principleshould apply to the principle of fault liability， presumption of fault liability, and theconstituent elements including excessive medical practices, the fact of damage, causation andfault. the article pointed out that in the judgment of causality should consider the specialnature of medicine, such as the basic cause and incentives and other factors, Judging on thefault, This analysis results is in patients tort to property damage caused by willful, but only caused damage to the person for negligence. On the responsibility, the article proposed thatmedical institutions should be liable for damages, but based on the special nature of themedical industry, Medical damage can not be attributed to medical institutions wholly,Force majeure, the fault of the patient and the patient’s informed consent can constitute themedical institutions defenses, in order to share the responsibilities reasonably. In theconclusion of the article, The author put forward some feasible suggestions, focusing onestablishing the identification system to adapt to the excessive medical, hoping to ease theconflict between doctors and patients, to build a harmonious doctor-patient relationship, andpromote the healthy development of China’s medical industry.