Duty Of Disclosure Of Medical Information

With the increasingly legal consciousness and corresponding higher requirements for the medical service in recent years, there arise numerous medial disputes in the medical service market and the medical disputes over infringement upon the right of informed consent from the patients due to violation of the duty of disclosure of medical information frequently occur. Although the Tort Law makes clear provisions on the duty of disclosure of medical information by the medical personnel, protection of right of informed consent from the patients and independent decision-making, the contents to be disclosed and the liability for damage compensation have been perplexed the medical profession and the judicial practice since its implementation. The author holds that the duty of disclosure of medical information by the medical personnel is able to protect the realization of right of informed consent by the patients and plays an important role in reducing the medical disputes, especially in China's current medical status, especially in China's current medical status, the big and medium-sized hospitals have heavy medical missions and the medical personnel may not exercise the duty of disclosure of medial information due to the heavy tasks, thus underlining the obligation to exercise the duty of disclosure of medial information is particularly necessary.Apart from introduction and conclusion, this paper is composed of four parts:The first part has an overview over the duty of disclosure of medial information. The duty of disclosure of medial information is divided into general disclosure and special disclosure. The occurrence of the duty of disclosure of medial information is based on the transformation of the basic mode of the doctor-patient relationship and respect for the right of independent decision-making and the apparent asymmetry arising from the high professionalism of the medical practices and the rapid development of modern medicine. The exercise of the duty of disclosure of medial information has important practical significance.The second part discusses the object and contents of the duty of disclosure of medial information. The first object to be disclosed by the medial personnel is patient. When the patient has no capabilities or it is inappropriate to make disclosure to the patient for the purpose of protective medical requirement, the medial personnel shall make disclosure to the close relatives of the patient. If the patient entrusts others with the right of informed consent due to the poor understanding ability, the medical personnel shall make disclosure to the entrusted. This paper focuses on the exercise of the duty of disclosure of medial information by the medical personnel to the patient to be operated on, among which the disclosure of the operation's risks and the alternative treatment scheme is especially important. For the reason that the Tort Law makes clear provisions on the disclosure of the alternative treatment scheme to the patient for the first time, it can be predicted that whether some medical measure has an alternative treatment scheme and whether and when the medical personnel make disclosure shall become the major controversial issue between the plaintiff and the defendant in the dispute over the liability for the damage compensation.The third part discusses the exemption from the duty of disclosure of medial information. The duty of disclosure of medial information by the medial personnel is not absolute. When the compulsory treatment and urgent treatment is required by law due to public interests, the patient has been aware of the contents to be disclosed and the patient waivers the right of informed consent voluntarily, the duty of disclosure of medial information by the medial personnel may be exempted.The fourth part discusses damage compensation for the violation of the duty of disclosure of medial information. The violation of the duty of disclosure of medial information mainly lies in failure to exercise the duty of disclosure of medial information, improper exercise of the duty of disclosure of medial information and false disclosures. With regard to the criteria for determination of the duty of disclosure of medial information, the author supports the reasonable doctors and the specific patients. The principle of presumption fault and the revision of burden of proof shall apply to the violation of the duty of disclosure of medial information. The damage from the violation of the duty of disclosure of medial information includes material damage and mental damage, in which the former includes personal damage and property damage. As for the violation of the duty of general disclosure of medial information, the hospital shall not generally bear the liability for the material damage compensation, nor do mental damage compensation; however, the loss of option right of the patient arises from the violation of the duty of disclosure of medial information by the medical personnel, the hospital shall bear the aforementioned liabilities. Although no personal damage of the patient arises from the violation of the duty of special disclosure of medial information, the hospital may bear the liability for the material damage compensation.