Study On Liability For Tort Of Overtreatment

With the increase in medical disputes today, people pay more attention on excessive medical treatment—a new cause of medical disputes. This abnormal medical behavior seriously undermines the trust between doctor and patient, cause the doctor-patient relationship nervous, damage the patient’s property, health, and waste a lot of limited medical resources, and even hinder the progress of medicine. Although different fields scholars,include ethics、economics, research the causes and solutions of overtreatment,but in a society with rule of law if lack of legal weapons to protect people’s rights, excessive medical problems can not be completely resolved. Although our country published in "tort liability law" in2009,the article sixty-third expressly prohibited excessive examination of medical behavior, due to lots of restrictions eventually this provision became a mere scrap of paper. In this context, this paper will analyze the problem of excessive medical treatment from a legal point of view.This paper consists of three part, the first part is about the definition of excessive medical treatment. Excessive medical service refers to the medical institutions and medical personnel violate the statutory or contractual obligations and the standard of diagnosis and treatment of unnecessary diagnosis and treatment behavior in the treatment process, this behavior caused significant damage to the rights of patients. In order to better understand the excessive medical treatment, we will distinguish the excessive medical treatment and appropriate medical care, defensive medicine, protection medical treatment and medical accident. Excessive medical treatment is specifically manifested in excessive examination, excessive treatment, excessive health care in three aspects, the causes is complex. This article has carried on the classification of the causes of excessive medical treatment, in order to find the solution from the reasons.The second part is an overview of excessive medical tort liability. Constitute excessive medical tort must have four elements:excessive medical treatment, the facts of patient’s severe damage, medical institutions and medical personnel has fault, a causal relationship between excessive medical treatment and patients with severe damage Scholars have disputes on the imputation principles of tort liability of excessive medical treatment, combined with the "tort liability act" fifty-seventh, we can analysis principle of excessive medical tort presumption of fault liability. In view of the practical doctor-patient dispute on the amount of compensation for mental injury divergence, this section focuses on the spiritual damage compensation scope of excessive medical tort compensation. At the same time reference capped, other countries and regions of the fixed amount of compensation, the discretion that China can take the maximum limit to avoid the high amount of compensation for mental damage, it is good to judge.The third part is the excessive medical tort law and perfection of the legal regulation. Though "Tort liability law" put forward a clear prohibition of excessive examination of behavior, the provisions are too general, lack of maneuverability, so that excessive medical tort problemis still be in suspense. Excessive medical standards can be judged by objective factors in violation of the standard of diagnosis and treatment and study the medical personnel to patients clinical results, diagnosis and treatment of subjective factors.we can use different identifications on excessive medical tort litigation for identification of medical damage identification mechanism, timely introduction of the third party to resolve the current doctor-patient both sides not convinced the appraisal conclusion problem. The lack of medical liability insurance in China, and mediation, arbitration can not play its due role, make our medical dispute gradually evolved into the medical trouble. So the establishment of non litigation mechanism of multiple which play a greater role in the mediation of our country is badly in need of, and gradually improve the system of medical liability insurance.This paper adopts the social investigation method and literature method to research the excessive medical tort liability. The author through dialogue with the side of the patient and medical staff, found that the prevalence of excessive medical treatment. And after a thorough understanding of key links for the excessive medical treatment in the clinical occurrence with further understanding, provides the realistic foundation for thesis writing. Then, by consulting a large number of books and papers, a collection of excessive medical overtreatment in news reports, presentations, laid the theoretical foundation for the thesis writing rich regulation from the legal aspects of excessive medical treatment.By reading a lot of excessive medical literatures and find legal provisions, combined with the experience of the author’s own, discovered the law about medical treatment in our country lack of regulation, can not provide legal guarantee for solving the disputes caused by excessive medical treatment. And the scholar analyze the excessive medical treatment from sociology, ethics, medicine, economics perspective, legal papers related to excessive medical treatment with few and not comprehensive, even no specific books over the medical tort. Based on the analysis of the predecessors of the excessive medical treatment, this paper attempts to analyze the excessive medical service from the angle of law. And I give my opinions for the legal regulation through learned advanced medical measures in other cities and foreign experience.