Research On The Determination Of Tort Liability For Infringement Of Patients’ Right To Informed Consent

The patient’s right to informed consent refers to the patient’s right to be fully informed of medical information and to make medical decisions in his or her own interest,subject to reasonable information and instructions from the doctor.As a concrete manifestation of human dignity and personal freedom in the medical field,the patient’s right to informed consent connotes the maintenance of the patient’s autonomy in deciding on the integrity of his or her body,bridges the communication between the doctor and the patient through the dynamic process of"informed consent",and ensures that medical activities The right to informed consent is about maintaining the patient’s autonomy to make decisions.According to a big data report,infringement of patients’ right to informed consent has become the second most common cause of loss for medical practitioners,and medical technical negligence is often accompanied by impairment of patients’ right to informed consent,and medical tort litigation related to patients’ right to informed consent is ongoing.From the existing theories of tort liability and judicial practice,there are practical problems such as difficulties in determining that the medical party has fulfilled its duty to inform,differences in determining the consequences of damage,and insufficient judgement on legal causation.Article 1219 of the Civil Code adds a new requirement of"specific" description and "cannot" to Article 55 of the Tort Liability Law,replacing the term "written consent" with "express consent"."Although this has the positive effect of strengthening the medical party’s duty to inform,it is not very operable in the complex medical practice and brings confusion to judicial decisions.Therefore,it is necessary to analyse the elements of tort liability,reasonably weigh the interests of both doctors and patients,and strengthen the analysis of the justification for the liability of doctors.At present,there is abundant research on the basic theory of patients’ right to informed consent,but not much focused and systematic analysis on the determination of their tort liability.This article focuses on the shortcomings and analyses the reasons for the determination of tort liability for infringement of patients’ right to informed consent,and reviews the legal effects of the amendments to the Civil Code,in order to explore judicial responses to improve the determination of tort liability.The paper consists of three chapters.The first chapter introduces the research questions with three judicial cases.It points out the difficulties in the existing cases of infringement of the patient’s right to informed consent in terms of finding that the medical practitioner has fulfilled the duty to inform,the consequences of damage and legal causation.Chapter 2 presents a jurisprudential analysis of the research questions.Firstly,the determination of the duty to inform on the part of the medical practitioner is based on two levels: the content and the standard of judgment,and it is pointed out that the duty to inform has a general and vague content and the standard of judgment is unclear.Second,on the issue of determining the consequences of damages,we blend theory and practice to explore the controversy over the nature of the consequences of damages,agree with the "impaired right to informed consent" theory,and on this basis make a distinction between property damages and non-property damages,so as to develop the determination of the consequences of damages,and believe that the determination of moral damages has It is believed that there is a practical problem in determining the "severity" of moral damage,which is not easy to grasp.Thirdly,on the judgement of legal causation,the role of "choice" in the judgement of legal causation and its judgement criteria are analysed,and two types of causation are distinguished by whether"choice" really exists or not,and different theories are adopted for judgement."In the case of the real existence of "choice",the limitations of the theory of causation are found,and the theory of foreseeability and the theory of the purpose of the law are proposed as supplementary ideas for improvement.The analysis of the application of the theory of foreseeability and the theory of the purpose of the law is proposed.The third chapter provides suggestions for improvement.In order to address the shortcomings in the determination of tort liability for infringement of patients’ right to informed consent,it is necessary to improve the determination of the medical party’s obligation to inform,to reasonably determine the consequences of damage and to optimise the legal causation.