Informed Consent In Medical Liability Theory

Medical malpractice has become a serious social problem in recent years. Although scholars have done some research in this field, many questions are still not been settled in our country. The physician's duty of disclosure is one of them. As we know, every human being of adult years and sound mind has a right to determine what shall be done with his own body. So a physician must provide enough information in order to achieve a truly informed consent. But few people paid attention to this question before. The Statute on Medical Malpractice implemented on 1 September 2002 provides that physicians have duty to disclose pertinent information. However, the limitation of the Statute is obvious. Many legal issues are not mentioned in the Statute. Therefore, the purpose of this article is to introduce the world popular "informed consent doctrine". After the introduction, I will give some advice to our statute and practice.This article is divided into four parts. Part One introduces the informed consent doctrine generally, including its concept and functions. The general rule for informed consent is that a physician must, except in certain situations, obtain the consent of a patient before treatment. However, mere consent to treatment does not suffice: the patient must receive a clear and honest explanation of the proposed treatment so that he or she can give an informed consent. The consent norm had occupied a prominent an honored place in legal thought. The most important function for informed consent doctrine is that it will promote the realization of individual autonomy. SectionⅡof this part introduces the evolution of informed consent in America, Germany and Japan. The informed consent doctrine mainly comes from America, so the author plays much emphasis on the evolution in America.Part Two discusses a physician's duty to disclose. There are six sections in this part. SectionⅠis the legal foundation for physician's duty to disclose. Physician and patient can sign a contract to regulate their legal relationship. However, the two parties have different statuses. In the author's opinion, it's better to adjust physician's disclosure duty according to fiduciary duty, for this will help to achieve patients' best interests. SectionⅡ argues the main body for the disclosure duty. The conclusion is that if there is more than one physician during treatment, not all the physicians have duty to disclose. SectionⅢ discusses the standard of physician's duty to disclose. There are two standards in this doctrine: professional standard and patient standard. The patient standard includes objective standard and subjective standard. In theauthor's opinion, the objective patient standard is easy to practice. At the same time it can balances the interests between physicians and doctors well. SectionⅣ reviews the scope of physician's duty to disclose. After the general introduction, this section lays emphasis on the new development of physician's disclosure scope, such as the personal information and economic interests. The scope of disclosure required by the informed consent doctrine under both case law and statutes will be reviewed. SectionⅤ argues the exceptions of physician's duty to disclose. The exceptions include emergency exception, therapeutic privilege exception, unknown risk exception, and so on. SectionⅥ discusses legal elements of breaching physician's disclosure duty. The legal elements include negligence, damages and causation. Part Three concentrates on the patient's promise. SectionⅠargues the significance of patient's promise. SectionⅡdiscusses the required elements of patient's promise. In order to make a patient's promise effective, the patient must have ability to promise and promise willingly. In addition, achieving enough pertinent information provided by the physician is necessary. SectionⅢ introduces the form of patient's promise. The written promise is not necessary in all situation. However, patient and physician had better sign a written contract before an important treatment is put into...