Study On Constitution Of Tort Liability For The Medical Institution’s Infringement Of Medical Informing Obligation

The Tort Law of the PRC (hereinafter referred as the Tort Law) has provided the tort liability for the medical institution’s infringement of medical informing obligation and its exemptions in article55and article56, which has acknowledged the independent status of informed consent right of patients and offered the patients a freedom to choose one as the base of right of claim between the right of claim for the compensation of damages for infringement and the right of claim for compensation of damages for breach of the medical service contract. However, the Tort Law’s provision is too general to set a standard which is definite and exercisable for judgment, leading to an awkward situation in justice practice which asks for a specific definition on the constitution of compensatory liability for infringement. In China, there are lots of medical disputes related to medical informing obligation. With the judges’neglect of this obligation’s independent value, the patients always claim frequently and indiscreetly that the medical institution has infringed the medical informing obligation. So, in order to stress the medical informing obligation’s special value—protecting the patients’ right for independent decision-making—which is aimed at guaranteeing the informed consent right of patients, there’s a need for us to make a study on the constitute of tort liability for the medical institution’s infringement of medical informing obligation. That will be a job changing the randomness into preciseness injustice practice and helping the medical informing obligation get the honor due to it.Apart from the introduction and the conclusion, this thesis is composed of four parts:Part one is about the analysis on the situation of medical informing obligation in China. With the perfection of our legal system on medical informing obligation, the medical institutions are asked to fulfill the medical informing obligation in a higher and deeper standard while the medical institutions’ attitude towards it is diverse. There are many medical disputes related to medical informing obligation but the obligation’s independent value is not reflected in the judgments. Some critical problems remain to be interpreted.Part two is about the subjects concerned with the medical informing obligation. The medical institution is the obligor for medical informing obligation and its staffs are the ones who help the obligor to fulfill its obligation. The informed consent right of patients only belongs to the patients and the obligor can fulfill its obligation to the patient or the patient’s agents according to their sequence. Besides, the staffs duty behavior is different from his or her personal action, and the Tort Law’s provision in article55can’t apply to the latter.Part three is about the constitutive requirements for the tort liability for the medical institution’s infringement of medical informing obligation. The sufficiency of the obligor’s fulfillment of the medical informing obligation consists of two parts—the comprehensiveness of the content informed and the reasonability of the manner informed in, and it’s appropriate for us to use the reasonable physician standard to judge whether the content informed is comprehensive while use the specific patient criteria to judge whether the manner informed in is reasonable. If a medical institution doesn’t fulfill its obligation sufficiently and there’s causation between the content uninformed and the patient’s intention decision simultaneously, we say the medical institution has an infringement of the medical informing obligation. The harm to the patient may be material damage or mental injury. And the standard to judge whether there’s causation between the patient’s harm and the behavior that the medical institution doesn’t fulfill its obligation sufficiently should be the influence that the content uninformed has to the patient’s decision or the curative effect.Part four is about the exemption for the tort liability for the medical institution’s infringement of medical informing obligation. The circumstances of this liability exemption are the compulsory medical treatment for public interests, emergency medical treatment and the abandonment of informed consent right by the patient. As to the emergency medical treatment, the medical institution can do this only in two situations, one is that the obligor can’t get in touch with the patient’s agents timely or the patient’s agents refuse to be the patient’s agents, and the other one is that the agents in the same sequence can’t come to an agreement. If the patients or their agents refuse to accept the treatment, it’s unwarrantable to do emergency medical treatment.