A Study On Liability For Tort Of Overtreatment

The New England Journal of Medicine published an article, it pointed that many Americans have been overtreated, its typical representative is the heart stent surgery. The data shows that, one fifth of the cardiac angiography is unnecessary in the United States, and nearly half of patients with coronary heart disease should not be placed stents. In other words, they were overtreated. The problems of overtreatment exist widely in our country. But it lacks legislation in our country. The Tort Law of the People’s Republic of China referred to overtreatment only has one provision, which is about unnecessary examination. But the provision is too general and incomplete. Due to the imperfect provision of overtreatment in our Tort Law, this article will discuss the problem of overtreatment from different angles, and try to find some perfection measures.The first part of this article will discuss the basic theory of overtreatment. This part will talk about its definition, its manifestations, its roots and its nature. In terms of the definition, this part will discriminate it from different subject and similar concepts. In terms of the manifestations, this part will discuss excessive inspection, excessive medication, excessive surgery and excessive care. In terms of the roots, this part will discuss it from three factors, that is medical, patient and legal. In terms of nature, this part will discuss two points.The second part of this article will discuss which constitutes liability for tort of overtreatment. This part will talk about its criterion of liability, its constituent elements and its burden of proof. In terms of the criterion of liability, this part will select the United States, Sweden, Germany, Japan and Taiwan of China to discuss. In terms of the constituent elements, this part will use the theory of four elements, which must contain the practices of overtreatment, the harm of patient, the causation and a fault of the medical side. In terms of the burden of proof, this part will discuss the burden of proof for patient.The third part of this article will discuss the concurrent liability of overtreatment. The concurrent liability of overtreatment in this part, which only refer to the responsibility of default and liability for tort. This part will discuss its theory, its condition and its solution.The fourth part of this article will discuss the liability for tort how to assume. This part will talk about its subject, its way and its exemptions. In terms of the subject, this part will discuss the subject of act and the subject of liability. In terms of the way, this part will discuss the way of damages and the way of an apology. In terms of the exemptions, this part will discuss the force majeure, the fault of patient, the commitment of patient.The fifth part of this article will throw out some suggestions to improvement the system of tort liability for overtreatment. This part will discuss the suggestions from two aspects.