Study On The Duty Of Informed-consent

With the development of the market economy,the litigation rate of medical malpractice disputes in China has increased significantly since the late 1990 s.Due to the high degree of medical expertise,patients are often in a state of ignorance regarding related medical measures.However,with the increasing awareness of the rights of patients,a series of lawsuits have been triggered in the judicial practice due to the failure of medical parties to fully fulfill their obligation to inform.Although relevant laws and regulations have stipulated the fulfillment of the medical obligations of the medical authorities,there are still some differences in the judgment of such cases in practice.In addition to personal injury,whether the damage result of the medical party's violation of the obligation to inform includes damage to the right of informed consent,the dispute remains.As a result,the scope of liability is not clearly defined.The patient's rights are not guaranteed.The judicial interpretation of the medical damage liability promulgated in 2017 has provided new regulations for the liability of doctors for violating their obligation to inform,which in turn will have an impact on the burden of medical responsibility.Based on the judicial practice,this paper starts with the nature of the medical obligation of disclosure and its theoretical source,combines the relevant domestic and foreign judicial cases,the content of the obligation to inform,the adequacy of the obligation to inform,the exception of the obligation to inform.There are still many controversial issues,such as the situation,to discuss.We will focus on the infringement liability of the medical party not fullyfulfilling the obligation to inform,and provide new solutions to the judicial problems in practice.This article consists of the following three parts:The first part discusses the nature of the medical notification obligation.The solution to this problem provides the patient with two ways of remedy for the loss of rights and establishes the relevant legal provisions in China.At the same time,the related content of the informed consent theory closely related to the medical notification obligation was introduced.And the definition of the nature of informed consent was discussed in detail to explore the theoretical basis of the medical notification obligation.In addition,based on the boundary of the exercise of rights,the author analyzes and demonstrates the principle of exercising the right to informed consent.The second part examines how medical parties perform their obligation to inform.Including the subject of the notification,the object of the notification,the adequacy of the notification,and the content of the notification in the normal case and the exemption of the notification obligation in special circumstances.Among them,the author emphatically analyzed the object of performance of the obligation to inform and the standard of adequacy of fulfillment of the obligation to comply with related cases.The third part discusses the responsibility of the medical party to violate the obligation to inform,which is also the most practical part of the operation.The author first analyzed the ways of remedy for breach of medical notification obligations.It also selected some typical cases in which the medical party violated the obligation of infringement of the notification obligation.In combination with these cases,it analyzed the constitutive elements of the tort liability and the extent of the damages that violated the medical notification obligation,and provided new ideas for judging the medical party's violation of the obligation of notification in practice.