论过度医疗侵权行为及其法律规制

过度医疗一般是指,在医疗过程中,医师对患者的疾病实施不必要的诊疗措施,致使患者的医疗费用明显超过疾病诊疗实际需求的医疗行为或医疗过程。过度医疗认定的关键,在于把握过度医疗行为与适度医疗行为的界限,并且应将其与保护性医疗和防御性医疗加以严格区分。从法律意义上讲,过度医疗是一种发生在医疗过程中的特殊民事侵权行为,是指医疗机构及其医务人员在医疗活动中,以获取一定经济利益为目的,违法实施不必要的诊疗从而造成患者明显人身、财产损害并应承担相应法律责任的行为。过度医疗侵权应适用过错推定责任进行归责。《侵权责任法》立法上将过度医疗的范围,仅局限在"实施不必要的检查",不足以充分保护患者的合法权益,立法上应进一步做出扩充解释。

On Excessive Medical Treatment Tort and Its Legal Regulation

Excessive medical treatment generally refers to a medical act or process in which the unnecessary diagnosis and treatment measures adopted by doctors on the disease of patients,which consequently causes medical expenses to obviously exceed its actual need.The key of certifying excessive medical treatment lies in a demarcation line between excessive medical treatment and appropriate medical treatment it should be strictly distinguished from protective and preventive medical treatment.Legally,excessive medical treatment is a special civil tort in the process of medical treatment.It is an act in the process of which medical institutions and doctors illegally implement unnecessary diagnosis and treatment measures in order to gain some economic interests,thus causing the obvious damages of patients and their properties for which they are to take legal liabilities.Excessive medical tort is attributed in view of the presumption of fault.In legislation,Tort Liability Law limits excessive medical treatment to "the implementation of unnecessary examinations",which is not sufficient to protect the legal rights of patients.Accordingly,it deserves extended explanation in legislation.