Research On Tort Liability Of Excessive Medical Treatment

Excessive medical treatment has always been a hot issue in society,and it is also an important factor causing disharmony between doctors and patients.It not only caused property or personal damage to patients,but also a great waste of social resources《 Article 1227 of the civil code of the People’s Republic of China only stipulates over examination,but in the following elaboration,we can see that over treatment and over examination are not exactly the same.In real life,there are still a lot of problems such as excessive operation and excessive drug use,which are not specified in the civil code.This paper mainly uses the methods of literature research,legal hermeneutics and comparative analysis to study the tort liability of excessive medical treatment in China.In the first part,this paper analyzes the excessive medical treatment from the perspective of sociology,medicine,law and other disciplines.At the same time,it analyzes the similar concepts of excessive medical treatment and moderate medical treatment,defensive medical treatment,protective medical treatment,medical accidents,etc.,and defines the connotation and extension of excessive medical treatment combined with relevant contents.It refers to the behavior that in the normal diagnosis and treatment activities,the doctor violates the relevant laws,regulations or diagnosis and treatment norms,intentionally or negligently carries out unnecessary examination,medication or nursing to the patient,which leads to the damage of the patient’s property or body and assumes the tort liability for it.On this basis,the author makes a comparative analysis of the three theories of excessive medical treatment,namely,tort liability,liability for breach of contract and concurrence of liability for breach of contract and tort,and finally determines them as tort liability.In the second part,through the analysis of the imputation principle of excessive medical tort liability at home and abroad,this paper summarizes the point of view of this paper,that the principle of fault liability should be applied and the mitigation system of burden of proof should be introduced to reduce the burden of proof of patients.In the third part,firstly,it analyzes the elements of excessive medical tort: that is,the medical party has carried out excessive medical treatment;This kind of excessive medical treatment is caused by the intention or negligence of the doctors;This behavior brings harmful consequences to patients;There is a causal relationship between the excessive medical treatment and the damage consequences.What is the "degree" of excessive medical treatment? That is to say,the medical party violates the corresponding laws and regulations and diagnosis and treatment norms when providing diagnosis and treatment services.The fourth part analyzes the liability of excessive medical tort.Firstly,the subject of liability is confirmed,then the compensation of excessive medical tort is determined,and finally the defense and exemption of excessive medical tort.While fully protecting the interests of patients,we should also consider the objective situation,so as not to damage the legitimate interests of doctors.