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Research On The Infringement Of Excessive Medical Treatment

Posted on:2017-03-26Degree:MasterType:Thesis
Country:ChinaCandidate:P YanFull Text:PDF
GTID:2336330485481793Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The excessive medical phenomenon is more common in the society, and the difference is that the medical accident, excessive medical treatment resulted in the burden of the patient's medical costs, to a large extent, also caused the waste of social limited medical resources. Before the implementation of Tort Liability Law of People's Republic of China, the civil law regulation of excessive medical treatment can only rely on the contract law, but the adjustment of the contract law to the excessive medical treatment can not show a large limitation due to the evidence of the patient. The article 63th of Tort Liability Law of People's Republic of China of the unnecessary inspection of the excessive medical treatment, to realize the adjustment of the tort liability law which does not need to check the behavior. The specification in the tort liability law of unique significance, can intend through legal interpretation of major practical problems of excessive medical treatment, there is necessary to study this theory deeply.The excessive medical tort is the treatment behavior which refers to the medical institutions and their medical personnel in the process of providing medical services, treatment measures for personal gain in violation of the standard of diagnosis and treatment and more than the actual needs of patients with the disease itself, to cause unnecessary damage to the patient's diagnosis. The specific manifestations of the excessive medical tort include: excessive treatment and excessive examination, excessive treatment is divided into two forms of excessive surgery and excessive use of drugs. In excessive medical tort liability cognizance, take the combination of front and auxiliary standard identification methods, that is a combination of clinical path management and expert opinion, in the main body of expert opinion, emphasize that a court set up specialized medical team of experts, in order to achieve the authenticity of identification conclusion, fairness. The imputation principle of the excessive medical tort liability is the principle of fault liability, which is conducive to prevent the production of defensive medical behavior, and promote the further development of the medical industry. Based on the constitutive elements of the tort liability law, the violation of the excessive medical tort, facts of damage, subjective fault and cause and effect relationship and other issues are analyzed, as pointed out that the medical staff failed to fulfill its duty of reasonable care, their behavior is illegal; Damages include personal injury, spiritual damage and property loss. The form of the subjective fault of the excessive medical tort should include two aspects:the intention of the delibrate of the property right of the patient and the negligence of the personal right. The causal relationship of the excessive medical tort liability should be applied to the probability of causation, the vulnerable groups to tilt protection. In view of the deficiency of the 63th article of Tort Liability Law of People's Republic of China, it is put forward that the concept of unnecessary, relevant diagnosis and treatment norms and so on, to expand the scope of the adjustment, but also to deal with excessive treatment and other forms of expression. Combined with the existing medical norms, the establishment of the authority of the diagnosis and treatment norms, to provide the basis for the effective implementation of the article, the introduction of the burden of proof to ease the system, to solve the problem of fault liability caused by the patient; The nature of the identification of the excessive medical tort is determined as the judicial authentication, which is organized by the judge of the court to ensure the authenticity of the appraisal conclusion.
Keywords/Search Tags:excessive medical treatment, tort liability, imputation principle
PDF Full Text Request
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