Study Of Excessive Medical Treatment Tort Liability

The promulgation of Tort Law makes the problem of excessive medical treatment entering the field of tort liability.However,many theories still need to be improved.The thesis analyzes the current legislative status and the predicament of the excessive medical treatment tort liability.To solve the predicament of identification,the thesis puts forward three countermeasures from the following aspects: the standards of identification,the rule of causation and the attribution of responsibilities.In view of the special liability of excessive medical treatment,the thesis divides it into drug exchange,cost refund and compensation for additional damage.Finally,the thesis puts forward suggestions for legislative improvement,so as to benefit judicial practice.The first chapter of the thesis introduces the judicial status of excessive medical tort liability.Firstly,through differentiating the concept of excessive medical treatment from similar concepts,it is concluded that the essential characteristics of excessive medical treatment are violation of duty of care and unnecessary diagnosis and treatment.Secondly,the thesis enumerates two typical cases and reveals the shortcomings of the sixty-third article of Tort Law.The limitation of the application and the lack of concept definition limits the practical role of the article.In addition to the lack of legislation,the identification of excessive medical treatment is a bigger problem.Because of the complexity of excessive medical,there are differences of the identification of the behavior,the causation and the principle of imputation.The second chapter of the thesis puts forward the countermeasures from three aspects.Firstly,in order to identifying the excessive medical treatment,the theory should be based on both doctors and patients.The standard is divided into four aspects: the standard of diagnosis and treatment,the standard of attention obligation,the standard of informed consent and the standard of fitness.Secondly,in the cognizance rules of causality,the thesis proposes the introduction of the substantive induction rules from the Anglo American law system.In the case of personal injury,as long as it is proved that excessive medical behavior increases the risk of damage,a causal relationship can be founded.In the proof rules of causation,the rule of probability of causation allocates the risk of uncertainty in the lawsuit to both doctors and patients,which is balancing the position of lawsuit between doctors and patients.Finally,in the doctrine of liability fixation,the thesis divides the excessive medical treatment into three types.Each type applies to different doctrine of liability fixation.In the field of disclaimer,the main cause of disclaimer is negotiorum gestio,medical accident,force majeure,patient's request and incompatibility.The third chapter of the thesis expounds the responsibility of excessive medical tort liability.The responsibility of excessive medical treatment is divided into drug exchange,cost refund and compensation for additional damage.In the case of drug exchange,excessive medical drugs can be returned to pharmacies at the original price or replaced by cheap drugs.Because of the different types of medical treatment,the rules of the cost calculation are different.The cost of profit and loss should be considered.In the case of fraud,the punitive damages clause of the Consumer Protection Law should be applied.In the respect of additional damages,the scope of compensation is positive damage,negative damage and mental damage.In the case of multiple causes,the rule of causative potency should be applied to the distribution of liability.The fourth chapter of the thesis demonstrates the necessity of the legislation of excessive medical tort liability,and puts forward some suggestions on the sixty-third article of Tort Law."Unnecessary inspection" should be extended to "excessive medical treatment".It should take the duty of attention as the basis for fault judgment.In order to make up for the deficiency of the standard,the standard of identification is raised to the legal level,and the standard system should be constructed.Finally,through the formulation of the sixty-third article of the Tort Law,we should clarify the legal connotation and legal responsibility of excessive medical treatment,so as to make it getting practical significance.