Medical Institution's Compensatory Liability For Breach Of Informing Duty

Physician's duty of informing is derived from medical ethics.With the awakening of patients' self-consciousness and the wave of patient protection,national laws have clearly defined physician's duty of informing and patient's right of informed consent.In the Tort Law of PRC,the first paragraph of Article 55 provides the contents of the informing duty,and the second paragraph stipulates the the compensatory liability arising from the violation of the preceding paragraph.When we refer to the constituent elements of the tort liability,in order to accord with the purpose of Article 55 and the tendency of general personality right protection,the damage to patient's informed consent shall be recognized as the damage element,and the personal injury is the subsequent damage caused by the preceding damage.In the construction of causality,we shall adopt different causal theories for different damage facts.For the damage to the right of informed consent,the proof standard changes from "inevitable" to "may",deficient informing that may affect the patient's self-decision damages the patient's right to know and participate in the decision.Because the relationship between personal injury and physician's deficient informing is weak,causality construction shall be more discreet.That means the patient with sufficient information must choose a different medical measure and such measures can enhance the interests of patient or avoid or mitigate the present damage.Legal practice may digitalize profit and loss results under different medical decisions to build the double-layer causality structure.Where the result is blurred and indistinct,the medical institution shall assume the compensatory liability.Medical expert opinion is an important evidence for a judge to affirm the causal relationship,but it is not equivalent to the final judgment.Medical expert opinion can not answer the question whether there is a damage of informed consent.In addition,for a judge's discretion,what makes sense is not the final conclusion of the medical expert opinion but the empirical medical data.Objective fault element standard requires a clear definition of the informing duty.With the phenomenon of informing duty expanding,we may take BPL Terms and the purpose of medical service to re-affirm the fault element.