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Study On Performance Of Emergency Rescue Obligation In Operation Of Critical Disease

Posted on:2017-02-01Degree:MasterType:Thesis
Country:ChinaCandidate:J H WuFull Text:PDF
GTID:2296330503459222Subject:Law
Abstract/Summary:PDF Full Text Request
This paper is in the perspective of article 56 of the Tort Law, analyzing the shortage of article 56 of the Tort Law in the clinical practice, for example, lack of the definition of the emergency circumstances and lack of the duty of the perform the right of emergency treatment etc., meanwhile citing and analyzing the rule of how to perform the right of emergency treatment in American and Japan, in order to get some idea to perfect the performance of the right to the emergence treatment in the clinical practice and impel the right of emergency treatment to be the effectively supplement of the informed consent right. From the ancient time, life saving had been being regarded as doctors’ bounden duty. On one hand, it’s the request of doctors’ practicing rules and norms; on the other hand, it is also medical institution’s rules to respect patients’ rights of self-decision. But under the circumstance that life saving is in conflict with respecting patients’ rights of self-decision, it is necessary for law to provide a guideline of behavior to the doctor. Article 56 of Tort Law has played the role. This article made from a real case: in 2007, a serious disease put a pregnant woman from Beijing in a coma. Because her husband refused to sign the informed consent document, she died from lack of medical care. This is the case of “Li Liyun” which attracted great attention at that time. After this, rescuing the critically ill patients has been regulated as a binding obligation of doctors and medical institutions by article 56 of Tort Law. According to this, doctors may perform the operation with the approval of related officials even fail to get the patient’s opinion.To our regret, article 56 of Tort Law existed faults since it was been made initially.Firstly, inaccuracy can be found in wording of this article. Lawmakers and legal workers could understand that the significance of making this article is to help medical institutions to open the door of rescuing critically ill patients and protect patients’ right of life and health. But contrary to the intent of article 56, many words used in it are been considered misused. Take for example: as the article said, with the approval of related officials, doctors “may” perform the operation. The word “may” means that it is a right. One step further, right can be given up. That’s to say doctors can refuse to save the patients even with the approval of related officials. For consideration of taking responsibility, refusing to take the operation comparatively decrease the risk of illegality. So increasing number of doctors will chose to refuse the operation to against the risk. At the same time, they can find effective legal regulations to support them. Obviously, it is not what lawmakers and legal workers want to see. Besides Tort Law, The Regulation of Medical Institution 、The Law for Licensing Medical Practitioner and other relevant provisions of laws and regulations issued before all admitted that rescuing critically ill patients is doctors’ binding obligation. Therefore, it is not proper for some researchers to view it as a right that can be given up. Article 56 emphasizes the fact that under legal situation, as a legal obligation, doctors must help patients to save their lives. This obligation is born with dual attributes. Obligation is the first attribute, while right act as its trait. As another example, according the statement of article 56, when the medical institution cannot get the opinions of patient or patient’s relatives, it can goes to next legal procedure. That means if medical institution get the opinion of patient’s relatives, patient’s own opinion make no sense. Obviously, it goes against the practice and intent of this article. So here may be a little mistake of article 56. Replacing the “or” to “and” will be more accurate.Secondly, the application of the article causes another dilemma. Because of its inaccuracy, during the process we turn the regulations to reality, many troubles and difficulties has to be faced up with. For instance, article 56 allows doctors to take operation only under the circumstance that patient’s condition was life threaten, or under other emergencies. What kind of disease can be recognized as “ other emergencies”, it seems to be an ambiguous question, which troubles doctors and medical institutions a lot. This thesis takes the Standard of Serious Illness for Emergency Rescue issued by state council as reference, to analyze the boundary of “other emergencies”. In chapter two, the thesis discusses the application condition of article 56 separately and focuses on analyzing the controversial problems occurred from real life. On the premise of lack of effective judicial interpretation, the author tries to give a reasonable interpretation combined with national laws and regulations by referencing the related theoretical elites of other countries and areas.Thirdly, laws and theories serve the practice finally. Although article 56 of Tort Law release the burden of medical institutions to some extent, the realistic problem derived from emergency rescue still bother the both parties, such as who has the obligation to pay for the emergency rescue. Some researchers supposed that obligation of emergence treatment in public law do not affect the constitution of voluntary service in private law just because of their similarities. The thesis focus on analyzing this problem and then make a conclusion that the boundary of them is whether it is necessary to bear the burden of legal risk if the certain behavior has not been done. Meanwhile, through founding the similarities between emergency rescue and voluntary service, the solutions to solve payment problem of rescuing with the theory of voluntary service has been presented. This is an innovative idea to explore a new way to solve the realistic problem combined with the civil law theories. In addition to above mentioned, how to examine legality of such behavior is also what lawmaker needs to consider. The obligation of emergency rescue cannot be carried out without legal procedure that what requires getting related officials’ admission at first. Such regulation triggers new problems. It is hard to assure that related officials are familiar with clinical practice in all medical branches even they have professional medical knowledge background. While, whether above officials have advantageous or disadvantageous relations with certain patient and how to assure them to make a reasonable and professional decision are also what need to consider. So it is necessary to examine the legality of emergency rescue behavior itself, and what later comes to the problems of preliminary review or posterior review. The above problems all derived from the application of article 56 of Tort Law, some of which has not been ruled by current laws and regulations. This thesis attempts to put forward effective solutions, looking forward to developing better doctor-patient relationship.
Keywords/Search Tags:obligation of emergency rescue, informed consent, emergencies
PDF Full Text Request
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