To be honest, over-medicalization (I)

This is the 5171th article of Da Yi Xiao Hu

In the handling of medical damage disputes, patients often say, "A lot of blood is drawn as soon as they enter the hospital. They are already seriously ill, and their blood is drained. This is not treatment, but aggravating their condition"; "The old man has been paralyzed in bed for many years, and he still has to do so many physical therapy projects every day", etc. The medical side will say, "How can we make a comprehensive diagnosis if we don't do an examination in the hospital? Who is responsible for missed diagnosis and delayed treatment?"; "The old man is sick, and it is better to start treatment than not to treat him!", etc. This actually reflects a global problem, the problem of over-medicalization. Let's talk about this topic today.

First, let me introduce the relevant regulations.

Regarding excessive medical treatment, my country's Tort Liability Law, which came into effect on July 1, 2010, stipulates that medical institutions and their medical personnel shall not violate diagnosis and treatment standards and conduct unnecessary examinations. Although the law has now expired, the Civil Code, which came into effect on January 1, 2021, fully retains this provision.

The basic health law, the Basic Medical and Health Care and Health Promotion Law, which came into effect on June 1, 2020, clearly stipulates that medical and health personnel should follow the laws of medical science, abide by relevant clinical diagnosis and treatment technical standards and various operation standards as well as medical ethics standards, use appropriate technologies and drugs, conduct reasonable diagnosis and treatment, and treat patients according to their illnesses. They must not provide excessive medical treatment to patients.

The Physician Law, which will be officially implemented on March 1, 2022, also stipulates that physicians should adhere to the principles of safe, effective, and economically reasonable use of drugs, and follow the clinical application guidelines, clinical diagnosis and treatment guidelines, and drug instructions for rational use of drugs. Physicians who perform unnecessary examinations and treatments on patients during their professional activities and cause adverse consequences should be subject to corresponding administrative penalties.

Excessive medical treatment may not only infringe upon the rights and interests of patients, but may also violate the regulations on the use of medical insurance funds, resulting in losses of public medical insurance funds. The Regulations on the Supervision and Administration of the Use of Medical Insurance Funds also clearly stipulates excessive medical treatment, and designated medical institutions and their staff shall provide reasonable and necessary medical services in accordance with the diagnosis and treatment standards, and shall not violate the diagnosis and treatment standards for excessive diagnosis and treatment or excessive examinations.

Next, let’s look at common scenarios.

Common over-diagnosis and treatment include the following: increasing the types and frequency of patient examinations and tests; using expensive treatment items and drugs to replace economical and effective treatment methods; prescribing nutritional drugs or injections for patients without relevant indications; violating treatment routines and adding rehabilitation projects unrelated to treatment; carrying out clinical graded nursing beyond the standard, etc. It can be seen that over-medicalization involves drugs, laboratory tests, various treatment measures, etc., and has problems such as wide coverage and qualitative specialization.

How to identify excessive medical treatment is particularly critical.

The judgment of excessive medical treatment is based on two constituent elements: first, whether the medical institution and its medical staff have violated the medical treatment routine, operation specifications, expert consensus, textbooks and other regulations; second, whether it has increased the cost expenditure and economic burden of patients, or the expenditure of medical insurance funds. As mentioned above, clinical medicine is an extremely professional discipline, and it is constantly developing and updating. To truly determine whether there is excessive medical treatment, it still requires experts and professional institutions to make professional judgments.

Fortunately, judicial appraisal of the reasonableness of medical expenses has been available in judicial practice. The current implementation, how patients use it in protecting their rights, and related cases will be discussed in detail in the next issue, as well as the legal liability of medical institutions and their medical staff for excessive medical treatment.

Author: Shanghai Boss & Young Law Firm

Lawyer Zheng Jun