On Tort Liability Of Violating The Obligation Of Informed-consent

The Article 55 and 56 of The Tort Law has made rules for the obligation of the Inform consent. The Tort Law has defined informed-consent within the category of the liability of damages for trespass for the first time, which is of great significance. But the different interpretations made by the theoretical and practical circles lead to the “different sentences of a case”. Through the analysis of the attributes and performance of the inform consent, this thesis explores the cognizance of the tort liability of violating the obligation of informed-consent, and ascertains the scope of compensation, therefore, to provide ideas for the solution to related cases. The whole thesis is divided into four parts.The first part explores the attributes of the inform consent. Based on the medical service contract between the medical institutions and patients, the obligation of the inform consent has the contractual attribute. Meanwhile, due to the risk and invasiveness of medical behavior, the obligation of the inform consent has been endowed with legality. The relevant laws and regulations at home and abroad have made specific provision about its legality. Therefore, patients can appeal for damages for breach of contract from the perspective of the contract, and also can request damages for trespass from the perspective of tort.The second part is the discussion of the performance of the obligation of the informed-consent. The subject of the obligation including medical institutions and medical staffs who take specific treatment for patients. When the object of the obligation are patients, we should regard whether they have the recognition capacity as the standard to decide whether they have the capacity to agree. When the object of the obligation are patients’ close relatives, their syn-position should be clearly informed. The content of the obligation mainly includes the subject, process, effect and cost of implementation of the medical behavior. In addition to the traditional oral and written mode, sound recording and video recording mode can also be introduced.The third part probes the independence of the tort liability of violating the obligation of informed consent. From the perspectives of the present law, comparative law and the difference between it and the Medical damage tort liability, we can confirm the independence of the tort liability of violating the obligation of informed consent.The forth part discusses the cognizance of tort liability of violating the obligation of Informed-consent. Firstly, in order to balance the interest of patients and medical institutions, the judgment of violating the obligation of the informed consent can adopt the standard of express specific patient and professional. Secondly, the damage of violating the obligation of the informed-consent can be divided into the material damage and the spiritual damage. Finally, the tort liability of violating the obligation of informed-consent can be divided into two types based on whether it is accompanied with the fault diagnosis. For the material damage caused by violating the obligation should be compensated. For the serious spiritual damage, the patient can ask for mental damage compensation. For the general spiritual damage, the patients can request the medical institution and doctor to bear the responsibility of extending a formal apology.