The Exceptions Of The Medical Notification Obligation In Tort Law Of China

Since ancient Rome,medical treatment has become a professional skill.“Doctor paternalism” is the structure of the relationships between medical personnel and patients.Medical personnel can take all decisions.But with the development of right consciousness,the disadvantages of doctors' paternalism are appearing,and the patients' autonomy is improving.Medical notification obligation rises and has become an important medical ethics system.However,as an obligatory provision,the medical notification obligation may cause delay or even abandon of the treatment of patients,because medical personnel have to avoid liability.This is not only contrary to medical ethics,but also a violation of patients' life and health.Whether there are exceptions to the medical notification obligation has gradually aroused discussion.The medical notification obligation stipulated by our law now imposes more risks and duties on medical personnel.In practical medical practice,the interests of medical personnel and patients need to be rebalanced,and the duties of both sides need to be clarified.In foreign countries,especially common law countries,the legislation and discussion on the exceptions of medical notification obligation have been relatively sufficient,while in China,the legal provisions and academic discussion are very limited.The clarification of medical tort liability of tort law in China requires us to fully discuss and clarify the exception.Therefore,the exception of medical notification obligation should be paid attention to and discussed.From the perspective of patients,there may be two exceptions: patients cannot accept the information objectively and patients are not willing to accept the information voluntarily.The objective inability of patients to accept notification mainly refers to the meaninglessness or inability of medical personnel to inform patients due to the common or emergency factors of patients.Among them,when the patient cannot be informed due to emergency factors and the specific consent of their close relatives cannot be obtained,the medical personnel should treat the patient in accordance with the provisions of the Chinese law on medical emergencies.This kind of provision for emergency is actually the embodiment of emergency avoidance in the medical notification system,which should be a cause of illegal obstruction.Patients' subjective unwillingness to accept the information means that patients voluntarily give up the right of informed consent.When the medical personnel cannot obtain the specific consent of their close relatives,they can directly treat the patients.Medical personnel do not bear tort liability because they do not have fault.From the perspective of the medical personnel,because medical notification obligation is compulsory,the consideration of exceptions should be carried out at two objective levels: medical treatment and medical ethics.On the level of medical treatment,the medical risk with very low possibility refers to the slight medical risk involving basic common sense of life in common treatment measures and the extremely low medical risk unrelated to specific conditions in special treatment measures,both of which are not within the scope of medical notification obligation.On the level of medical ethics,protective medical measures refer to the measures taken by medical personnel according to the specific situation of patients,when they think that performing medical notification obligation will have a significant adverse effect on patients,for the sake of patients' health,they cannot inform or partially inform.At this time,the medical personnel should inform the close relatives of the patients.Protective medical measures isn't an exception of medical notification obligation in Chinese lawFrom the perspective of other than patients and medical personnel,whether compulsory detoxification,compulsory medical treatment for mental patients who do not bear criminal responsibility according to law,or compulsory isolation treatment for patients with infectious diseases,medical personnel need to inform patients or their relatives.The intervention of public power or other factors cannot constitute exceptions of medical notification obligation in tort law.Therefore,the exceptions of medical notification obligation in our tort law should include: the emergency situation caused by special factors of patients,which is a specific manifestation of the cause of illegal obstruction;the patients voluntarily give up the right of informed consent,the medical personnel have no fault,which does not constitute tort liability;the medical risk with very low possibility,the relevant risks are not covered by the medical notification,and medical personnel do not have to inform patients.