Research On Civil Liability For Excessive Medical Treatment

Excessive medical treatment is one of the common causes of "expensive medical treatment",and also one of the important factors causing doctor-patient conflicts.It not only causes the waste of medical resources,but also may endanger the public's life and property safety.Therefore,in order to effectively prevent the occurrence of excessive medical treatment,timely and correctly protect the legitimate rights and interests of patients or their close relatives,it is necessary to further improve the civil liability for excessive medical treatment.By using the comprehensive analysis methods included theoretical research,case study and social research,this paper made an in-depth discussion on the theory and practice of civil liability for excessive medical treatment in China.The first part,with the help of the definition on excessive medical treatment from different subjects such as sociology,philosophy and medicine,meanwhile combining with the distinctions about the similar concepts such as appropriate medical treatment,defensive medical treatment and irrational medical treatment,the article redefined the concept of excessive medical treatment.It is one kind of illegal medical behavior which medical institutions and its medical staffs,mainly in order to economic purposes,violate the medical laws,regulations,other medical rules or inform obligation,and implement more medical activities than the actual needs of patients,intentionally or negligently cause property damage or non-property damage to patients or his near relatives,and shall bear civil liability.On this basis,this paper summarized the dual characteristics of excessive medical treatment in four aspects: objective,illegal,damage and fault.According to typification analysis of excessive medical treatment from the three perspectives like cause,purpose and specific medical behavior,it excluded the medical behavior for special medical purpose or partly based on patient reasons from the scope of civil law regulation of excessive medical treatment.In the second part,it clarified that excessive medical treatment had the dual civil legal attributes included breach of contract and infringement,and put forward that,in some cases,there existed concurrence of infringement relief path and default relief path.Then,the internal structure of civil liability for excessive medical treatment in China was sorted out from liability for breach of contract and tort liability,involved legal basis,constitutive elements,liability assumption and exemption.The third part,through the empirical analysis about 114 judicial cases of compensation for damages caused by excessive medical treatment and some typical cases,it made clear the actual situation of judicial operation of civil liability for excessive medical treatment in China at the present stage,and elaborated the identification of excessive medical treatment involving related cases for the first time.The fourth part,through questionnaire surveys and interviews about the legal practitioners,medical personnel,and public,it understood the social operation of the civil liability system for excessive medical treatment in our country,and found that the present civil liability system for excessive medical treatment had some problems,such as unclear basis of right of claim,difficulty in judicial identification,imperfect appraisal system and single means of prevention and relief.At the same time,many opinions of various social parties on the improvement of civil liability for excessive medical treatment in China also were collected.In the fifth part,based on the above research,it put forward four suggestions to gradually improve the civil liability for excessive medical treatment in China.At the rules level,we should promote the legislation of medical contract and improve the tort liability of excessive medical treatment.In judicial application,we should strengthen the trial organization of excessive medical treatment,perfect the judicial cognizance procedure of excessive medical treatment,and establish the concept of comprehensive judgment.In terms of social operation,we should strengthen the publicity and education of the legal system for excessive medical treatment and improve the legal aid system.In addition,we should attach importance to strengthening the connection with the non-litigation legal system and relevant professional organizations,broaden the way of excessive medical treatment prevention and relief.