Civil Law Protection Of Patients' Privacy Right

Establishment and protection of the right to privacy is a sign of the development of human civilization. During the process of legalization for personal right, the right to privacy comes out later than basic personal rights such as right of reputation, full name right, portraiture right and etc. The protection system of the right to patient privacy is established even later. Dispute over the right to patient privacy, as one expression of the law disputes derived from medical care, has drawn great attention in the jurisprudential circle. The aim of this thesis is to raise some opinions regarding acknowledgement of civil liability on offending the right to patient privacy and applicability of civil liability through analyzing the characteristics of the right to patient privacy and the spectrum of civil protection, and contribute to civil protection of the right to patient privacy.This thesis is divided into three parts besides introduction and the conclusion. I. Definition of the right to privacy and patient privacyAlthough the right to privacy is acknowledged by most countries, there is no definition of privacy and the right to privacy acknowledged universally in public right so far, neither is patient privacy and the right to patient privacy.It is appropriate to define privacy right as an independent personal right which prevent the illegal interference of personal life secret, personal behavior freedom and private area tranquility,as this definition reveals legal characteristics of the right to privacy. As one kind of personal right, it has the general characteristics of personal right and meanwhile has its unique legal characteristics.This thesis regards physician-patient relationship as the premise for the definition of the right to patient privacy. In another word, the right to patient privacy is studied from the perspective of physician-patient relationship. There are some debates in theory circle regarding the nature of physician-patient relationship. The author claims that physician-patient relationship is not the typical civil law relation but special civil law relation. Based on the consideration of maximally protecting disadvantageous groups and current status of the legislation and justice of the right to patient privacy in our country, Consumer Protection Law could be selectively applied. In the long run, it is necessary to establish a special law in view of the specialty on physician-patient relationship. Considering the definition of physician-patient relationship as the premise, the definition of the right to privacy as the foundation, I define as follows: the right to patient privacy is the right to protect individual information, personal privacy, individual area from being offended by hospital. As one specific form of expression of privacy right, the right to patient privacy had the general characteristics and power of privacy, but due to the special relation between patients and hospital, it also has its own peculiarity.II. Analysis of the legislation rules and range of protection of the right to patient privacy in civil law in ChinaCompared with other law department, the civil law on legislation of privacy in our country is relatively lagging. At present, there are no overall, systematic protecting regulations of privacy. Although privacy is acknowledged as specific personal interest, so far there is no prevailing legislation to acknowledge privacy right as one specific personal right, leave alone the right to patient privacy. For a long time, privacy right is indirectly protected by right of reputation, however, such protection has many drawbacks. Although many judicial interpretations have become the most direct evidence for the protection of the right to privacy at present, and our Health administrative rules and regulations also have several regulations to protect patient privacy; while it has a long way to satisfy the social demand. Thus, considering the specific acting area and value basis of the right to privacy, I suggest that it is possible and necessary to make it clear that the right to privacy holds the characteristics of status of independent personal right and nature of specific personal right under prevailing right system.On basis of the analysis of the prevailing legislation and relative theories on protection of the right to patient privacy in civil law in China this author interprets the protection range as follows: the right to patient privacy protects"legal patient privacy"from the protective objects. The key to distinct"legal patient privacy"and"illegal patient privacy"is to judge whether the undeclared information of patient will violate public interest or others'legitimate interests. This author deems that the constitution of"legal patient privacy"must meet some conditions; otherwise it is only defined as"illegal patient privacy". From the perspective of power and function of patient privacy, the right to dispose is the core of the four powers protected by privacy. From the subjective aspect of the right to patient privacy, each patient holds their own different requirements, such as: whether they need the protection; at what kind of level they need the protection. From the conflict of powers, the right to patient privacy is derogated by the public interest and legitimate rights of the third parties.III. The Type of Infringement of Patients'Right of Privacy and Its Civil LiabilityAccording to the performance of the infringement of patient privacy, there are mainly the following four types: the infringement of patient privacy during the process of diagnosis and treatment, the infringement of patient privacy after the process of diagnosis and treatment, and the infringement of patient privacy in the process of clinical training and scientific research in medical science which is controversial issue. As a kind of the infringement of patient privacy, it has general constitutive essentials of common tort. Because of the particularity of physician-patient relationship, it is determined that the infringement of patient privacy has its own special characteristics, for instance, the right to privacy is easier to be infringed compared with the general right of privacy; the result is mainly expressed through moral damage. The behavior that physician infringes patient privacy revolved in the physician-patient relationship always has dual legal nature of breach and tort, which belongs to the typical competing responsibilities that is competing responsibilities of breach of the contract and liability for tort. The patients can freely select the most favorable way as a relief. And the author considers that the patients can select more tort laws as relieves. Compared with the compensation resulted from breach of law and, the extent of indemnity for tort not only contains the compensation for loss of property, but also includes the compensation for moral damage, while the facts of loss caused by the infringement of the right to privacy is just embodied on the moral loss. The author considers that you should be careful to adopt the manner to require the actor, infringing the patient privacy, to undertake to stop the infringement, recovering the reputation and eliminate effects. The methods of bearing the civil liability for infringing the patient privacy are mainly adopted, such as: apology (undeclared) and compensation for losses. Among them the compensation for moral damage is the prime and stopping infringement, recovering the reputation and the eliminating the effect are just the supplemental methods. This author deems that the right to privacy is the dominion and it is freely determined by the obligee whether to reveal, expose and utilize the privacy. However, such a kind of self-determination is limited, that is to say, when main right to privacy infringes public interest, and the self-determination of the subject is limited. The most important subject of defense that the physician infringes the right to privacy is justly exercising the right to know.