Study On Civil Law Issues Of Medical Personnel’s Obligation To Disclose

Medical personnel’s obligation to disclose, which is an important part of the theory of informed consent and the precondition for patients to well exercise their self-determination right, own four features of exclusion, specificity, profession and finiteness. It first appeared in English and American precedents, and then adopted widely around the world, especially Germany, Japan and other countries have made relatively complete theoretical studies and legal regulations on the obligation. In our country, the one firstly stated medical personnel’s obligation to disclose is "Temporary Rules for Medical Clinics Administration" released in1951, after which a series of laws and regulations began to include it.As one of obligations borne by the party providing medical services in a hospital service contract, medical personnel’s obligation to disclose roots in the pursuance of overall interests of the contract and trust relationship between the patient and the hospital. At present four standards are introduced to judge if a medical staff has carried out his or her disclosure obligation:rational doctor, rational patient, specific patient and compromise standards. The scope of this obligation, which is related to whether the medical staff can properly exercise disclosure obligation, should mainly involve patient’s condition, treatment plan, risks and so on aspects, and achieve the "safety of reasonable expectation" and guarantee patient’s self-determination right.The breach of medical personnel’s obligation to disclose may cause infringement and concurrences of contractual liabilities since it concerns the right of life and health and other important legal benefits. In China’s medical system, the hospitals who are private, hence when a hospital-service-contact relationship is established, the medical personnel carry out official duty when implementing treatment actions as employees of the medical institution. In that case, if the medical personnel breach the obligation to disclose, the medical institution shall bear corresponding responsibilities. Under the circumstances:providing a protective treatment in emergency and the patient has clearly expressed to excuse the medical personnel from the obligation to disclose, the obligation can be relieved.Currently, the stipulations concerning medical personnel’s obligation to disclose in our country exist shortcomings, majorly including unscientific legislation system, inconsistent obligation subject and object, undefined judgment standards and scope as well as indistinct legal liabilities. In view of above defects, our country should improve the existing stipulations relevant to medical personnel’s obligation to disclose, and meanwhile formulate the medical staff to the implementation details of the law of obligations; establish the judgment standard that takes rational doctor standard as the lowest line and combines the "flexible" specific patient standard; extend the connotations of the obligation, unify its subject and object and clearly identify its concrete scope; as well as refine its legal liabilities and make up its restrictions.