An Empirical Study Of Infringement Of Patients' Right To Informed Consent

Articles 55th and 56th of the Tort Liability Act,which have been in force since July 1,2010 in China.It stipulates that the infringement of the patients' right to informed consent shall be liable for damages.Its legislative purpose is to balance the rights and obligations of both doctors and patients and to safeguard the health of the people and to construct a harmonious doctor-patient relationship.Since the implementation of the law,there has been a sharp rise in litigation cases concerning the right of informed consent of patients in China.However,the patients' right of informed consent is a typical imported product and most of its norms are born out of foreign relevant legislation.Is it suitable for China's national conditions?Is it enough to guide our practice?By screening the cases of medical damage disputes concerning the right of informed consent of patients after 2010 from the network of refereeing documents in China,this paper makes an empirical study of the cases with the help of statistical software to explores the problems and analyzes the causes and puts forward some suggestions for perfecting the patients'right of informed consent system.This article is divided into five parts:the first part is the introduction.This part points out that the current research barely emphasis on pure theoretical research in China,the empirical research is not enough attention.It is of great theoretical and practical significance to study the right of patients' informed consent through empirical research.The second part is an overview.This part points out that the law fundamentals of patients' right of informed consent is derived from medical ethics and basic human rights principles.The patients' right of informed consent has both intrinsic value and instrumental value.The evolution of the legislation of informed consent right in China and the constitutive elements of infringement of patients' right to know are also analyzed.The third part is the referee status of the case of infringement of patients' right of informed consent in China.Through analysis of SPSS 25.0,this chapter finds that cases involving infringement of patients' right to informed consent have long litigation cycle,high appraisal cost,high losing rate of medical institutions and high compensation amount.It shows that there is no balance between the rights and obligations of doctors and patients,and there may be a deviation in theory or practice.The fourth part is the defects of the theory and verification in the infringement of patients' right of informed consent in China.The misunderstanding in practice is related to the defects of the theory and there is no theoretical distinction between the determination causality of tort liability and the causal relationship of damage to determine the scope of damages;the theory of fault participation and causative potency cannot limit the scope of compensation.Through empircial examination,it is found that there are two misunderstandings in practice:First,for the case of infringement of the patients' right of informed consent only,causality and injury causality are confused and the causality of injury is useless.Second,for the case of infringement of the right of informed consent and other diagnosis and treatment negligence,the ethical fault of infringement of the right of informed consent is absorbed by other diagnosis and treatment negligence.The defects of theory and the misunderstanding of practice lead to the unreasonable scope of damages and cannot reflect the value of patients' informed consent right system.The fifth part is the theoretical revision and system perfection of the right of informed consent of infringement patients in China.This chapter points out that the identification of the infringement of the patient's right of informed consent should distinguish between determining causality and damaging causality.The compensation model should discard the intentional tort mode of" invalid consent " and the fault tort compensation mode of "full or none" type,and adopt Japan's "benefit difference"compensation model.At the same time,the scope of moral damages for the right of informed consent of patients should be expanded.