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The Research On Excessive Medical Tort Liability Issues

Posted on:2018-07-20Degree:MasterType:Thesis
Country:ChinaCandidate:X T LiuFull Text:PDF
GTID:2416330572959628Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Excessive medical treatment is one of the important causes of the doctor-patient crisis in today's society.Article 63 of the Tort Liability Act regulates excessive medical treatment for the first time.However,the definition of excessive medical treatment in this article is too narrow as it only covers "unnecessary checks violating treatment norms".The connotation of excessive medical treatment and the difference with other medical damage behaviors are to be further clarified and judged.The the nature of the excessive medical treatment liability under these conditions shall be clarified.Even in the field of tort law,compared with other types of medical damage,excessive medical tort liability possesses unique characteristics in the respect of imputation,constituent elements,damages,etc.From the perspective of the violation of rights,the differences between excessive medical treatment and appropriate medical treatment defensive medical treatment are explored,so as to clarify its connotation,On this basis,this article analyzes the nature of legal responsibility of excessive medical treatment,and explains the status of tort liability in this field.As one of the liabilities of medical damage,excessive medical infringement is not treated by law as a special type of medical damage bacause there is a big controversy in legal theory.Based on this,the principle applied in excessive medical tort should be analysed through the aspect of law,theory,practice,which can be called principle of fault liability.In accordance with the theory of four elements,the doctrine of liability fixation is analysed,including the fault,the violation,the result of the damage,the causality,focusing on the content of the differents in infringing elements between excessive medical treatment and the general medical.In addition to over-examination,excessive medication,over-surgery,over-health care can be defind as the illegal treatment.Different from the general medical infringement damage with the main characteristic of personal injury,the most excessive medical infringement damage is property damage.When determining the causal relationship of excessive medical infringement,presumptive causality theory should be adopted and mitigation rules of burden of proof can be used.At the same time,responsibility of great diligence of experts and standardization of diagnosis and treatment can be adopted as the Subjective and objective standards.The principle of comprehensive compensation as the basic principles of general infringement can be applied to the damage compensation of excessive medical treatment infringement.Thinking of the special subject of medical damages infringement,the damage compensation of excessive medical treatment infringement should be restricted.In the calculation of the compensation rules,the rule of balancing out increase and decrease is more suitable for the excessive medical tort.Annuity and medical services should be the main way of compensation.Besides,the account of compensation and time should be Calculated in advance.The solving of above problems may,theoretically,promote the excessive medical treatment to become an independent type of medical damage,and will thereby enrich the medical damage infringing system.In practice,this will help protect the legitimate rights and interests of patients,and at the same time,handle properly and prevent the doctor-patient dispute.
Keywords/Search Tags:Excessive medical treatment, Tort liability, Liability principle, Constitutive requirements, Compensation for damages
PDF Full Text Request
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