On The Doctor's Duty Of Disclosure

The right to know is one of the most important rights of a patient, and physician's duty of disclosure is the basis of it. In order to protect patient's right, the author suggest that physician's duty of disclosure should be involved in legislation. Although there are some legislations on informed consent it hard to guide judicial practice. The author analysis the problems through a true case, and bring forward feasible solutions to legislate on physician's duty of disclosure and to protect the patient's right to know.The first part introduces the conception, development, functions of Informed Consent Theory. This part also analyzes the relationship between physician's duty of disclosure and Informed Consent Theory.The second part analyzes the mainly problems happen in Informed Consent practice through a true case happened in Chengdu city. The problems are as follows: first of all, the legislations on physician's duty of disclosure are not clear and accurate, and it hard to guide the legal practice. Second, there are conflicts among different laws on target to be informed. The last one is the missing of the civil liabilities when doctors breaching physician's disclosure.The third part is about the solution and suggestion. This part contains four fields: first of all, the author suggests put physician's duty of disclosure into the statue on medical malpractice implemented. Second, the legislation should contain such content: (1) the main body for the disclosure duty. The conclusion is that if there is more than one physician during treatment, not all the physicians have duty to disclose. (2) Three types of disclosure. (3) There are two standards in this doctrine: professional standard and patient standard. The patient standard includes objective standard and subjective standard. The author believes different types use different standards. (4) The patient who has completely civil right should be the only target to get informed, in special conditions, the agent can be the target. (5) Therapeutic privilege of doctors should be contained in the legislation. (6) The legal elements of breaching physician's disclosure duty include negligence, damages and causation. The last part is about "Operation approval" which is always the focus of the argument between doctors and patients. The doctors who breach physician's disclosure duty shouldn't release his duty by the exception clause in Operation approval.