Study On The Tort Liability Of Overtreatment

The excessive medical behavior as one of the important cause of doctor-patient contradiction is intensified, however the theory research on excessive medical behavior in our country is mostly common in medicine, ethics, sociology and other fields, rarely involved in the field of tort law. When medical institutions and medical personnel implement improper medical behavior for the purpose of illegal profits which is beyond the actual need of disease diagnosis and treatment, and cause serious property rights and personal rights damage to the patient, the excessive medical behavior should be govern in the tort law regulation as an infringement behavior. In China’s "tort liability the63th provisions on law" excessive examination for excessive medical behavior should be brought into the tort provides a clear legal basis.Although the63th article of China’s "tort liability law" on the excessive medical behavior has made excessive check regulations, but in practice besides the excessive examination, excessive medical treatment include excessive surgery, medication and other excessive medical behavior. And in the real medical activities, excessive medical behavior and moderate medical diagnosis, optimization, and defensive medicine behavior both similarities, but also should be separated. The natrue of the excessive medical behavior has been in controversy in legal theory. Theories like Administrative Relations Theory and Contract Relations Theory are reasonable to some extent, while they also have the insurmountable defects, and moreover, they define excessive medical behavior as a tort will give a better protections to patients.Because Chinese law has no provisions about excessive medical tort liability of the imputation principle, liability constitutive requirements and the undertake of responsibility. Therefore, as a kind of medical tort, excessive medical tort liability imputation principles should apply the principle of Chinese law about the medical tort liability rules of general provisions, which apply the principle of fault liability. Considering the balance between doctor and patient, under special circumstances may apply fault onus probandi. And in our law, medical tort fault is taken as an objective standard, the fault is a kind of responsibility should be subjective status, the mean behavior objectively in violation of the relevant legal provisions. Therefore, the excessive components of medical tort liability should be used in the three elements, says that include fault, damage the fact and causality. Excessive medical tort damage caused by the fact that the main part is the loss of the patients suffered by property rights, in addition it is likely to damage the patient’s personal rights and interests and cause spiritual loss. They should put theories such as Correspodence Theory of Causal Relationship and Intervention Factors Rules into consideration,, and on the basis of the analysis of appraisal in a scientific cause various damage force, with the result of damage to the determination of fairness and justice in medical institutions of damage compensation liability.The undertake way to excessive medical tort liability besides damages, should also include a stop to the infringement, eliminate the danger, apologize, and so on. Diversity way of responsibility together with the damage compensation principle of the scientific and reasonable compensation range, only in this way can balance the interests between this patient, medical institutions as well as the other patients as far as possible, so as to fundamentally solve the doctor-patient contradiction which is caused by excessive medical tort.