Research On Tort Liability Of Excessive Medical Treatment

Excessive medical treatment has always been a hot issue in society and a practical problem to be solved.Excessive medical treatment of medical institutions and their medical staff not only causes damage to the personal and property rights and interests of patients,but also causes great waste of social resources.Chapter 7 of tort liability law of China stipulates the liability for medical damage in the form of a special chapter,but the provisions on excessive medical treatment are limited to the provisions of article 63 on "unnecessary examination".The manifestations of excessive medical treatment in China include not only excessive examination,but also excessive surgery and drug use.Therefore,the provision of section 63 of tort liability law has not alleviated the excessive medical treatment in medical institutions,but has intensified in recent years.At present,there is not much research on excessive medical treatment in various academic circles,and there is still a large legal gap.The research on this problem is mainly concentrated in the medical field,the medical ethics field,the sociology field and the economics field,and there is little research in the law field.This paper studies excessive medical treatment from the perspective of tort liability law,and holds that excessive medical treatment is a tort that infringes upon the legitimate rights and interests of patients,and follows the general research idea of tort liability.About excessive medical behavior in our country there is no unified definition,so this paper first an overview of related the excessive medical behavior,through the definition of the scholars on excessive medical behavior is behavior of excessive medical treatment is a medical institution and its medical staff in the course of treatment in violation of the diagnosis and treatment norms,for patients with diseases beyond itself requires the behavior of the patients' personal and property damage.Compare excessive medical behavior with moderate medical treatment,defensive medical treatment and medical malpractice,so as to better understand excessive medical behavior.Secondly,the legal nature of excessive medical treatment determines how to conduct in-depth research on excessive medical treatment.In addition,Chinese scholars related to law have disputes on what kind of legal nature of excessive medical treatment belongs to,mainly including the theory of tort,the theory of breach of contract,the theory of tort and the theory of breach of contract.Therefore,the author focuses on what kind of legal nature of excessive medical treatment is in-depth analysis,that the legal nature of excessive medical treatment is tort theory.Secondly,it discusses theconstitution of excessive medical treatment and the identification of excessive medical treatment according to the general tort liability law.The constitutive elements of excessive medical treatment mainly include harmful behavior,damage result,causality and subjective fault.This paper believes that the causality of excessive medical treatment is equivalent causality and the subjective fault state is intentional.The identification of excessive medical treatment includes the principle of imputation,the identification of the subject and the exemption of liability.Among them,the most controversial one is the imputation principle of excessive medical tort.Most scholars are in favor of the principle of fault liability,and the author thinks that the principle of presumption of fault should be applied through analysis.In the last chapter,Suggestions are proposed to improve the relevant deficiencies of tort liability law in China,including defining the types of excessive medical treatment,defining the scope of diagnosis and treatment norms,defining the scope of medical staff's obligations,establishing the identification system of excessive medical damage,and introducing the mitigation system of proof.Research on excessive medical behaviors,improve the laws related to excessive medical torts,and ensure that patients have laws to follow when they are subjected to excessive medical torts.It not only alleviates the doctor-patient relationship,but also contributes to the development of China's health management and promotes social stability.