The Legal Effect Of Surgical Consent

A harmonious doctor-patient relationship is not only an important part of harmonious society building, but also a livelihood project so that people have access to medical care. In the process of building a harmonious society, the doctor-patient relationship aroused extensive attention as the focal topic of medical services industry.With the increasing of medical malpractice cases, the requirements of the quality of health and survival right of patients are shown in the performance of technology, level and effect of diagnosis and treatment technology, which form a lot of pressure for medical side. In all aspects of medical practice, medical side takes all kinds of "measures" to avoid possible risks and adverse effects on the medical side. However, the "measures" actually hinder the development of technique of medical treatment, the service levels of hospital and medical staff and even development of medical science as a whole. In medical disputes, the problems on the operation agreement are particularly prominent. Surgery has a great impact on patient’s health and quality of life. Because the inherent risks in surgical treatment are difficult to predict, patients will sue for compensation based on operation agreement when the surgical treatment of patients did not meet expected results. As a result, the medical side will do everything possible to refine the surgical consent and firmly grasp the proof of its dominance and initiative in order to minimize the negative social impact in consequence of medical malpractice. Both medical and patients want to be able to take advantage of the rights and obligations in order to maximize their own interests, so doctor-patient relationship becomes tense.With the increase of people’s health consciousness and awareness of sovereignty, the use and the effectiveness of surgical consent has being concerned by medical and law circles. Patient does not fully accept the doctors’ surgery program, but to communicate on base of the mutual trust and co-operative research, and then determine and express knowledge and consent signed risk. It can be said that the surgical consent follow the legal right to protect their own decisions, and medical personnel to perform the duty of disclosure purposes of the generation and evolution. The agreement has become essential to the process of surgical treatment of the text, and also become a major medical reference in the malpractice cases judge.The surgical consent directly affects the legal effect of the trial results and the medical malpractice division of responsibilities between doctors and patients. This article will focus on the legal effect of surgical consent. In China, whether medical or legal circles have no unified regulations on the surgical consent. Scholars have different points on the legal nature and effect of the surgical consent. Defects in the legislation makes the surgical consent processing related to medical malpractice cases and judgments lack of reference, which has brought many problems to the judicial practice. Therefore, there is need for further research on the issue from both theory and practice.This paper focuses in-depth analysis of surgical consent concepts, theories, causes, legal functions, causes, basic type based on domestic and international existing research results. The article discusses the integration of the surgical consent into "Tort Liability Act" the legislative purpose, the introduction of typical case, focusing on the theory of informed consent and the key point of this theory and the importance of informed consent of the nature, characteristics, effectiveness, and the situation of violation for two sides, legal consequences and accountability issues. The article also analyzes the functions of surgical consent, the cause of conflicts between patients and doctors, and then finds a legal and practical starting point to perfect the system of surgical consent.This paper is divided into four parts:Preface:Taking a real case occurred in 2007, this part discuses the meaning and value of existence of the effect of surgical consent in theory and practice,. Part I:Overview of surgical consent. As an indispensable key to the process in surgical treatment of modern medicine, surgical consent has come from in the medical and legal theory at abroad. Being introduced into China, there have been considerable concern and attention on it; there have been various research results. This paper put forward that a legally valid surgical consent, as a civil agreement, which give the patients the right to make decision and clearing rights and obligations between the patients and doctors by legislation. The surgical consent plays an active role when the collapse of trust between the doctor-patient in the critical moment.Part II:Theory of informed consent. The patient should be informed of the true condition of the information before surgical treatment. Doctors take operation after the agreement of patients based on their professional requirements and professional ethics. Informed consent is rooted in the theory of natural persons have the right to determine their own body and life and health, and is the respect for human dignity for patients, and patients on their bodies, health, personal manifestation of the right to choose.Part III:The legal effect of surgical consent. This part examines the conditions of the surgical consent become effective. It discusses the legal consequences and responsibilities between doctors and patients after the violation of surgical consent by use of typical cases.Part IV:The standardization of surgical consent. This part is an innovation of the paper. Different diseases have different surgical treatment, different communication process between doctors and patients will cause different understanding of issues of consent and choice also determines individual differences in patients with surgical behavior in individualized treatment. In addition, the level of underdevelopment of the overall health care, local medical conditions, policies and medical diagnosis and treatment based on uneven development, the same standards of informed consent is difficult to form. But medicine is a very strong professional discipline, different kinds of surgical consent statements will make the investigations, evidence obtaining and trial inconvenience. It is meaningful to standardize the surgical consent for the handling of medical malpractice cases, protecting the right between patients and doctors and building harmonious relationship between doctors and patients.The article examines that the development of standardized informed consent is feasible. Only the implementation of standardized management, and can have comparable treatment for the medical dispute and have reference in the handling of dispute. Standardization is the practical realization of the surgical consent law function, which fully meets the informed consent of patients and physicians to fulfill this obligation, and fully reflects the condition of dialectical therapy in patients with the philosophy and purpose of human services.