Research On Excessive Medical Tort Liability

In recent years,the phenomenon of excessive medical treatment has emerged one after another.Medical personnel often take science as the cover umbrella and "for the health of patients" as the excuse to carry out excessive medical treatment,which not only wastes the limited medical resources of the country,but also damages the property rights and personal rights of patients and affects the healthy development of medical cause.The number of cases involving excessive medical treatment is increasing day by day,and excessive medical treatment has become a common problem all over the world.Excessive medical treatment in the sense of law is a special tort in the medical process.Concrete is to point to in the process of medical treatment,medical institution and its medical staff based on a consideration in non-medical purposes,in violation of legal obligation or obligations agreed upon,deliberately imposed unnecessary and actual demand more than the patients in the diagnosis and treatment measures of patients the lawful rights and interests,personal property damage,the subjective malicious with excessive medical treatment,objectively intentionally violates the property rights of patients.China's tort liability law has made a prohibition on excessive medical treatment in 63 articles.However,due to the principle of law and the concealment of excessive medical treatment,it is more difficult to identify excessive medical treatment in judicial practice.Based on the tort liability law,this paper focuses on the analysis of the excessive medical behavior and the excessive medical tort liability,examines the constitutive requirements of the excessive medical tort liability,and puts forward the corresponding improvement measures for a series of problems existing in the excessive medical treatment.In terms of the constitution of tort liability,it is considered that there must be four elements: illegal over diagnosis and treatment,damage result,causal relationship and fault of the medical party.Due to the particularity of medical tort,its subject must also meet certain conditions.On the basis of the principle of fault liability,the principle of primal facile evidence,the system of reducing the burden of proof,the reasonable distribution of the burden of proof of both sides,the principle of offsetting negligence,the comparison of fault and cause,and the comprehensive recognition of the liability of medical institutions should be applied in compensation.In this paper,literature research,comparative analysis and other methods are used to conduct in-depth analysis of excessive medical treatment,improve the theoretical research of excessivemedical treatment,find problems in practice,improve the curability of the legal provisions of excessive medical treatment,make the death law in books become the living law in practice,and better protect the legitimate interests of victims and all patients.