Informing Obligation Of Medical Side

In recent years, with the intensification of the doctor-patient conflicts,doctor-patient litigations due to the violation of informing obligation of medical sidehave emerged in endlessly."Tort Liability Act" enacted in2009made a generalProvision on the informing obligation of medical side, but it’s too general andprincipled to adapt to the current judicial practice. The jurisprudence and medicalprofession also had a lot of discussion on the informing obligation of medical side, butthey were unable to reach a consensus on some issues. This paper attempts to analyzeadvanced law of countries and regions in the world, combining with judicial practicein home and abroad, and then it proposes specific provisions fit for China’s realities.In addition to the introduction and conclusion, this article is divided into four parts:The first part describes the definition, origin and development of medical side’sinforming obligation. In this part we will know the meaning and content of medicalside’ informing obligation. Then it starts from the changes in the pattern of thephysician-patient relationship, leading to the generation of the informing obligation.And process of how the informing obligation come into being and develop in commonlaw and civil law are introduced separately，which focuses on the great significance ofCase Salgo to the formation of the informing obligation theory.The second part elaborates the Law foundation of the informing obligation frompoints view of Constitutional Law and Civil Law. First the author analyzes theconstitutional law foundation, and then explores the Civil Law foundation fromperspective of tort and contract law. In the tort law perspective, the author exploresthe foundation through the combination of Decision-making right and body right, withanalyze on inadequacies of the Theory that assent negates illegal acts. In the contractlaw perspective, the author elaborates the contract law foundation by analyzingdomestic and international law and using legal principles.The third part discusses the implementation of the informing obligation. In thispart we will know the object of the informing obligation, including the patient’s abilityto consent and the subordinated relationship between objects. Then this part describesthree kinds of performance standards about the informing obligation, combining withChina’s facts to choose the most suitable standard for China’s national conditions. Thepart finally explains the exception of medical side’s informing obligation, focusing on the problems that the medical side needs to inform or not when there is medicalemergency situations and informing adversely affects the patient.The fourth part analyzes the civil liability when medical side violates theinforming obligation. Through comparing Liability for breach of contract with TortLiability, Tort Civil Liability is the choice to request medical side takingresponsibility for violating the informing obligation, and the constituent elements ofthe tort liability are devoted individually.