过度诊疗责任构成及其归责原则

On the Responsibility Constitution and Liability Principles of Excessive Diagnosis and Treatment

过度检查作为一种侵权行为已为《侵权责任法》所确认,然而过度检查只是"过度诊疗"这一广义概念所包涵的一种表现形式。过度诊疗作为一类侵权行为,其责任构成应包括:违法行为、主观过错、损害事实和过度诊疗行为与损害事实之间的因果关系。过度诊疗责任应当适用过错推定的责任原则,即由医疗机构及其医务人员承担其行为与患者损害之间没有因果关系的证明责任。

Excessive examination is confirmed by The Law of Liability for Infringement as an infringement act, however, it is just one aspect of ＂excessive diagnosis and treatment＂ which covers more aspects. As an infringement act, excessive diagnosis and treatment should include illegal activities, subjective fault, the facts of damage, and the causality between excessive diagnosis and treatment and the facts of damage. And the responsibility principle of fault liability presumption should be applied to the determination of excessive diagnosis and treatment responsibility, which means that medical institutions and their staff should bear proof responsibility of no causality between their medical behaviors and patients＇ damage.