Study On Medical Informed Consent Theory Of Tort Liability Law

The patient’s right to informed consent is a fundamental subject of patients’ rights, but is also the object of strict laws and regulations to protect patients. Especially under the situation of increasingly tense doctor-patient relationship, and the more intense development of medical disputes, in order to effectively alleviate the tensions in the doctor-patient relationship, and keep a good balance of rights and obligations of both doctors and patients, thus protect the legitimate interests of the patient, the legislation should improve the legal system as soon as possible. Patient’s right to informed consent should be effectively implemented in practice as well. On the protection of informed consent of patients, Common law countries has formed a relatively mature through relevant case law and legislation, but in contrast our law form the relatively loose. Although the "Tort Liability Act" clearly states the obligation to inform the medical side and the right to informed consent, which plays a positive role, unlike previous laws there are conflicting and contradictory. Its own specification also ambiguities and shortcomings still exist. Based on the "Tort Liability Act," Article 55 and 56 to analyze, combined with common law mature theoretical research results, theoretically analyze the existing legislation on the application of patients’ informed consent system.This paper mainly includes the following four parts:The first part is the basic theory of informed consent system. It introduces the meaning of Informed consent and the development process of the theory, which is also the gradual evolution of the doctor-patient relationship model. Informed consent system is not only the product of social and economic development rights movement, but is also the inevitable result of balancing information asymmetry between doctors and patients. Western countries formed the theoretical system of the right of informed consent too early, the related theory research starts late in our country, legislative experienced more than 30 years of development and changes are not comprehensive. Legal norms scattered in various laws, regulations and administrative regulations, practice operation lacks of uniform industry standards.The second part is informed consent Legal Analysis. Because medical practices have both beneficial purpose of treating disease and invasive, risk, professional characteristics, in order to balance the interest of both doctors and patients, the law gives the right of informed consent of patients, also gives doctors the legitimate ground to negate illegal. It describes the right of informed consent from both the right to know and agree, the right to know balance the information asymmetry between doctors and patients in the medical professional field, consent is reflected in patient self-determination, while respecting the principle of the right to life and health.The third part is to exercise informed consent system, including the body of the right of informed consent, the capacity to consent, the rights of the content, right content and the informed consent system exceptions, which this article focuses on the chapters of. Although "Tort Liability Act" as a higher law and the new law unifies the different levels of effectiveness of legal norms, the specification is not comprehensive. So this paper summarizes the jurisprudence and practice identified in the cis position with respect to the rights of the subject, agreed that standard capability and other controversial point. This article refers to the law before, also with reference to foreign legislation and judicial experience, launched a feasibility analysis. As subjects of rights to informed consent, patient and other than the patient should be allowed to exercise their rights within the scope of the law. It should be the result of different equilibrium value under the comprehensive consideration, at the same time, the exercise of authority for the consideration of the two different interests should be treated differently. Thus this article focuses on the patients’ right to exercise the matter of principle, interprets the provisions of "Tort Liability Act," Article 56, and explains Article 56 of the Tort Liability Act "can not be achieved in patients or their close relative’s opinions", combined with "Tort Liability Act" Second Review draft to inquiry legislator’s intention. Thus define the scope of Article 56 to protect the patient’s right to informed consent more comprehensively.The fourth part is the obligations of the medical side. Informed consent corresponding to the doctor’s obligation to inform, which is both contractual obligation and statutory obligation. In order to be able to achieve the degree of patient fully informed and understand, it shall be true, accurate, comprehensive, popular and timely.