Tort Liability For Breach Of Medical Obligation To Explain

Today,medical disputes are frequent,and medical lawsuits often involves the tort liability of medical staff for violating medical obligation to explain as stipulated in Article 55 of the Tort Liability Law.However,the current local courts are not uniform in determining the tort liability.The inconsistencies in understanding will inevitably lead to ambiguous rights and responsibilities between staffs and patients,and the patients' interests will not be fully protected,which will further expand the contradiction between them.This article will be based on a large number of cases of doctors breaching medical explanation obligations in China,combining domestic and foreign related theoretical theories and judicial practice,to explore and clarify important issues in the determination of liability for breach of medical explanation obligations.The main contents of this article are as follows:The first part raises the problems of unclear legal provisions and inconsistent judgment standards in the determination of tort liability.The second part analyzes the constitutive requirements of tort liability requirements for doctors who have not fulfilled medical obligation to explain and violated the right to self determination.In the section of infringement of legal interests,it points out the judicial practice and the mistakes of academic circles in judging the infringement of legal interests.It reveals that Article 55 really protects the patient's right to self determination.The doctor's tort liability is caused,when he fail to perform the obligation to explain and the patient's right to self determination is therefore violated.In the part of injurious behavior,it discusses that doctors will infringe the patient's right to self determination when the information that influences the patient's decisionmaking is not fully notified.It describes the criteria for judging self-determination information,the differences with other kinds of information,and the scope,doctors' explanation of self-determination information should reach.In the fault section,it is pointed out that medical personnel should be at fault if they do not foresee that,the absence of self-determination information will infringe on the patient's right to self determination,when they have the possibility of knowing the information to be explained,and when they have not reached the level of attention of a good manager.In the damage section,it is pointed out that the subject infringed by the medical staff's violation of the obligation to explain is the patient's right to self determination.According to the benefits difference theory,the patient's damage is the consequence of the difference between the results of failing to make an autonomous decision and the possible results of making a medical decision autonomously.The existence of such a difference needs to be examined in three steps.In the causality section,it is stated that the proximate cause theory is not suitable for judging whether patients will make different decisions.The reason is that under the premise of freedom of human will,it is impossible to infer the probability relation between the damage of legal interests and the result of damage.In such a situation,it should be combined with the purpose of the law to observe whether the damage caused by the actor's violation of the law is the realization of the danger that the law intends to prevent.The third part,the legal analysis of controversial issues,discusses and analyzes the common controversial issues in the three doctor-patient explanation disputes.The conflict between doctors the right to make decisions on treatment and patient's right to self determination is the core issue of doctor-patient disputes.The conflict between the two is not only reflected in the doctor's failure to comply with the patient's decision,but also in the performance of the doctor's obligation to explain.Doctors do not comply with the patient's decision.There are mainly two cases where the doctor changes the surgical plan or expands the scope of the operation and the doctor violates the patient's unreasonable decision.In the first case,the doctor's change of surgery for emergency treatment in an emergency situation does not infringe the patient's right to self determination;when changing the surgical plan or expanding the scope of the surgery does not significantly increase the risk or involve physical insurance,the doctor's change is allowed and does not infringe on the patient's right to self determination.When changing the surgical plan or expanding the scope of surgery significantly increases the risk or involves physical insurance,it is necessary to study whether the change falls within the scope of the patient's authorization in conjunction with the decision made before the operation,If it does not belong,the doctor's unauthorized change will inevitably constitute a violation of the patient's right to self determination.In the second case,even if the patient 's decision is not optimal from a medical point of view,as long as the patient's voluntary choice is fully informed,the doctor should comply;and if the patient 's decision conflicts with life retention,that is to say,it is beyond the exercise limit of selfdetermination,at this time,the doctor fails to abide by the patient's decision but is not considered to constitute a violation of the patient's right.With regard to doctors' performance of notifications,the professional judgment of doctors should be respected,but this does not mean that doctors can arbitrarily decide whether to waive information explanation based on their own medical judgment.The doctor's explanation should always start from the independent decision of the specific patient.First of all,consider the patient's attitude towards medical behavior and whether he wants to be informed about the psychological state.After fully understanding the patient's will,the doctor's professional judgment in whether to explain or not can be used.When the wills of the patients are not consistent with the wills of the family members,it will also hinder the judgment of tort liability.First of all,it should be clear that authorizing family members to make decisions is an act of granting agency rights,and does not necessarily establish a trust relationship at the same time.Secondly,in view of the legal relationship between patients and their families,the order that doctors should follow when soliciting decisions is: first obtain the patient's decision at the time of surgery,then explore the patient's decision before surgery,and finally heed the decision of the authorized person,which is the family member.Medical behavior may constitute spontaneous agency(management of the business of another under no obligation),and prevent the illegality of medical behavior from infringing on the patient's right to self determination.The constitutional elements of proper spontaneous agency include managing other people's affairs,no legal obligations,and conforming to other people's self intentions.The difficulty in judging lies in how to determine the inferred intention.This article believes that inferred intention should be considered from the relationship between the cost of management and the benefit,that is,whether the legal benefit protected by the management of the affairs is higher than the legal benefit infringed by management itself.