Research On Tort Liability System Of Excessive Medical Treatment

Along with the rapid development of science and technology and medical level,excessive medical phenomenon also become intensified.There are many causes behind this phenomenon,such as the pursuit of economic interests by medical institution,the flaws in the process of national medical system reform,the imperfect laws and regulations,etc..The behavior not only violates patients’ legitimate rights and interests,but also causes much waste of medical resources of the country,so it must be strictly regulated and contained.Although China has issued relevant laws and regulations to regulate this behavior,the regulation function and expected effect of the law have not been fully revealed because of the highly professional and particularity of the medical discipline itself.This paper discusses and analyzes the two parts of theory and judicial practice based on the provisions of the Civil Code of the People’s Republic of China.The theoretical part mainly starts from the basic connotation of excessive medical behavior,and focuses on the definition of excessive medical behavior,discrimination of related concepts,causes and manifestations.The second part analyzes the attributes of the infringement of excessive medical treatment action,summarizing the existing law,constitutive requirements,doctrine of liability fixation and extent of compensation.The paper puts forward that the excessive medical tort liability should apply presumption of fault liability and fault liability principle,constitutive requirements should include the behavior,subjective fault,damage results and causal relationship between the four elements,the scope of compensation shall include property damage,personal damage and spiritual damage.Based on China’s judicial documents of the excessive medical tort cases,the judicial practice part mainly analyzes and appraises four segment content,respectively,from the time distribution line,behavior category,the referee on the basis of statistical.It is pointed out that the judicial practice in the application of law and trial in the process of problems,such as excessive medical behavior standard is not comprehensive,prescriptions obligations of medical institution is not clear,appraisal pattern flaw,etc.On the basis of the experience in other country,last part combines with the theoretical basis and the problems in judicial practice,puts forward some suggestions to perfect the excessive medical tort liability system: Improving the types of excessive medical behaviors by the form of legislative interpretation and judicial interpretation,and to improve the applicability of law in judicial practice through reasonable and flexible amendment;This paper classifies and discusses the problem of unclear medical obligations,and from the perspective of informing obligations and medical obligations,puts forward suggestions that the legal obligations and medical norms strictly followed by medical parties need to be further supplemented and improved.In view of the defects of the excessive medical identification mode,the author puts forward the idea of reconstructing the identification mode and perfecting the identification system.