The Doctor Explained The Voluntary Research

Chapter 1: the basic theory of the medical party's informing and explanation obligations.The first section mainly introduces the concept,historical evolution and function of the doctor's informing and explanation obligation.The medical party's informing and explanation obligations are independent obligations rather than a means or a dependent obligation.The broad medical party's informing and explanation obligations itself contains both the obligation to explain and the obligation to obtain the consent of the patient.First,it distinguishes the concept of the informing obligation of the doctor,especially to distinguish it from the "right of informed consent".Second,combing the function of the medical party's informing and explanation obligations.It includes: changing the doctor-patient relationship paradigm to protect the function of the patient's discretion,determine the medical level,promote rational negotiation,rebuild the trust of doctors and patients,avoid medical disputes and so on.The second section mainly elaborates the legal basis of the duty of the medical party to inform and explain--the patient's right to decide independently.It is believed that:first,insisting on the right to decide the patient's autonomy is more in line with the specific patient's rationality;secondly,insisting on the patient's independent decision is consistent with the introspection of the rationalism;thirdly,the patient's independent decision is the legal basis against the abuse of the power of doctors.The third section mainly defines the nature of the duty of notification.First,it expounds the theory of the tort law about the nature of the informing obligation of the doctor,analyses the theory of physical injury and the infringement of personality right,and puts forward the change of the personality benefit from maintaining the integrity of the body to the independent decision of the patient.Then it discusses the nature of the stated obligation in the contract law.They have both statutory obligations and contractual obligations,and oppose the expansion of legal obligations.Chapter 2: the subject and object of the duty of the medical party to inform and explain.The subject should be medical institution,and the medical staff should only be the specific performer,and the attending physician is the specific performer who have the obligation to explain the decision of the discretion.Second,the patient's ability to consent is separated from the capacity for civil conduct.The patient's consent to the requirement for the ability to perform is lower than the capacity for civil conduct.Because it is a kind ofpunishment for its own personal interests,it does not involve property transactions,so there is no need to consider transaction security.Chapter 3:the content of the medical party's informing and explanation obligations.The first section is mainly about the judging criteria for the content of the obligation to explain.It introduces the clinical evidence that challenges the hypothesis of the current informing system,which shows that the standard of rational doctors and the standard of rational patients still depend on the doctor's power.It is believed that doctors and patients should share medical decisions and patients' values and preferences should be protected.Therefore,the judgment criterion should be based on the combination of “ the reasonable patient theory ”and “ the specific patient theory”.The second section discusses the general content of informing and explanation obligations.First,it introduces the appropriateness of the scope of the informing and explanation obligation,and It is necessary to guard against the failure of the explanation,guard against the excessive amount of information to cause overloading effects,and separately analyze the exceptions of the medical risks,of the alternative treatment plan,explanation obligations.The third section is about the typification of the duty of instruction,the concrete typification of the duty of instruction,and the duty of instruction to ensure the efficacy of self-determination,ensure the curative effect and explanation obligation to transfer to hospital.Chapter 4: the study on the behavior and fault of violating the duty of disclosure.The first section mainly deals with the typification of general behaviors and specific behaviors of doctors who violate the duty of disclosure.The type of behavior that violate the medical party's informing and explanation obligations include: disagreement after the description and informed but non-disclosure or without consent from the patient.The first part of the second section mainly introduces the concept of negligence in violation of the duty of disclosure and the criteria for the determination of negligence,and clarifies the relationship between the fault in disclosure and the fault in medical technology.It is a reference for the common law to distinguish basic information from incidental information.Finally,the author introduces the evidence of the negligence of the medical side's notification,and points out the special significance of the negligence lawsuit.The second part mainly discusses the application of fault principle in the field of medical damage liability,which may have formal fairness and substantive injustice.The third part mainly introduces the principle of imputation of tort liability for violation of the obligation of disclosure.First,the principle of presumption offault shall be applied to the fault which simply violates the obligation of notification.Secondly,the integrated evaluation of the violation of the duty of disclosure and the subsequent diagnosis and treatment shall be carried out,and the multiple imputation system shall be applied,and the imputation principle shall be comprehensively applied according to the specific types.Chapter 5: the discussion on the causal relationship between the medical party's breach of duty of disclosure and damage factors.The first section mainly introduces the core elements of the causal relationship between doctors' breach of duty of disclosure and facts of damage.First,in the judgment standard of this kind of causality,substitution method and the free will of independent decision should be applied.The doctors can argue and disclaimer by demonstrating the legal substitution behavior.Secondly,the causal relationship should be established between the breach of the duty of disclosure and the actual personal injury or mental injury.Thirdly,the division of labor between factual causality and legal causality in the field of notification and explanation is discussed.The second section mainly discusses the obstacles to the application of the traditional "if nothing is impossible" standard of causality and its overcoming.If the traditional causality theory is strictly applied,the sooner or later arrival of treatment measures with the same risk and the sooner or later occurrence of risk will negate the establishment of causality in this field.Therefore,it is necessary to apply the revised theory of substitution method.Furthermore,the theory of loss of applicable opportunity under low cure rate is discussed.The third section discusses the restriction on patients' " hindsight " : personal preference is more important than rational patient standard.The patient needs to confirm or at least assert why he,even when properly informed,refuses to agree to treatment,especially for personal reasons.Chapter 6: the damage caused by the breach of the obligation of explanation.The first section discusses why the actual damages rather than the rights and interests damages should be considered as the elements of liability for damages.First,the infringement of rights does not necessarily lead to damage.Second,there is the debate about "actual damages theory" and "damaged informed consent right".The second section mainly introduces the types of damage facts,including the damage to real rights and interests and the damage to expected rights and interests.The third section discusses compensation for property damages in violation of the medical party's liability.The first is the dispute analysis on the nature of material damages caused by the breach of the duty of disclosure.The second is about the particularity ofcompensation calculation,which is to calculate the difference of actual interests between different meanings.The fourth section deals with the compensation for mental damage undertaken by the medical party in violation of the duty of disclosure.First,the limitation of compensation for mental damage for "other personality interests";secondly,distinguishing the particularities of the spiritual damage compensation in violation of the duty of explanation of the doctor's right of decision and the mental damage compensation for breaching the obligation to ensure the efficacy of the treatment.