The Research Of Protection Of Patients’ Privacy Right In Civil Law

Recently, news media reported that a man’s girlfriend had been suspected of having AIDs in premarital check-up in Yongcheng, Henan Province, which has aroused wide concern in public. Patients’ privacy right becomes a hot discussed issue again. However, this is not the first time conflicts happen about patients’ privacy right. As early as 2000, a hospital organized clinical teaching without the patient’s permission in Shihezi, Xinjiang. Discussion about patients’ privacy right has not been stopped since then.Privacy right is a symbol that marks the progress of civilized human society. With the development of society, people become more aware of safeguarding their own legitimate right, including privacy right, especially in medical care service. Civilians have higher demand for protecting patients’ privacy right. But due to the fact that medical staffs still remain their previous behavior pattern, lack of awareness to protect patients’ privacy right, contradictions between two parties escalated which resulted in increasing number of cases concerning patients’ privacy right infringement. Therefore, studying patients’ privacy right protection is of great significance.The issue and implement of Tort Law of People’s Republic of China is a watershed for protection of privacy right, or patients’ privacy right. The protection of privacy right is a part of reputation right protection and is not recognized by law as an independent human right before this law. After the issue of Tort Law, article 2 endows privacy right same status as portrait right and reputation right. Article 62 attaches great importance to patients’ privacy right. This symbolizes a great leap forward in patients’ privacy right protection in legal aspect. But it’s worth noticing that current laws just give guiding principles and still lack operability in real life which result in patients ’struggling on the road of privacy right protection in judicial practice.This paper aims at typological analysis on patients’ privacy right infringement through systematic carding on the basic theoretic issues of patients’ privacy right and it gives initial proposal regarding to current privacy right protection situation. It is hoped that patients, hospital and legitimate sections can pay more attention to patients’ privacy right protection and the tort law can be put into practice in its real terms.This paper has four sections, introduction part excluded. The first part starts from legal cases. I have searched and collected 15 typical legal cases concerning patients’ privacy right dispute. Combining with the cases, I made a brief analysis of present situation of the patients privacy protection in our country.Analysis of these cases introduces several remain-to-be-studied questions related to privacy right protection. First, definition of privacy right, that is, how to explain and distinguish privacy right and patients’ privacy right. Second, when the definition is clear, it comes to the question of analysis and identification of patients’ privacy right infringement behavior. It refers to classifying analysis to patients’ privacy right infringement situations. Third, it’s about civil law protection of patients’ privacy right, including legal assistance methods, determination of infringement and difficulties in identification of infringement of patients’ privacy right. Last, it’s dispute and contradiction between patients’ privacy right and other rights and interests. This paper discusses those questions and progresses in aforementioned order.In the second part of this essay, it deals with questions introduced in the legal cases of the first chapter by giving definition of patients’ privacy right on the basis of theory study of patients’ privacy right and defining patients’ privacy concepts. The author first sorts out the origin, concept and feature of privacy right theory and then draws a conclusion that when defining and judging patients’ privacy right, we still take basic features of patients’ privacy right as standards. Therefore, patients’ privacy right is subject to privacy right to the extent of concept. Patients’ privacy right is a part of privacy right in essence, and it’s just an emphasis of privacy right theory in complicated relations between hospital and patients. When it comes to studying the basic questions of patients’ privacy right, we should abide by general privacy right theory. Extracting patients’ privacy right from privacy right is due to some characteristics and complication of patients’ privacy right, which in turn results in frequent disputes. As a result, the author tries to give brief analysis to the characteristics of patients’ privacy right after definition is made clear about it.Then,the author summarizes several situations of patients’ privacy right infringement in real life after analysis of legal cases in the first part and gives classifying analysis. Restricted by traditional active-passive doctor-patient relationship, doctors and patients stay in ainequivalent state over a long period of time. This results in various forms of patients’ privacy right infringement in real life.After analyzing the types of patients’ right of privacy infringement,in the third part, the author focuses on civil law protection of patients’ privacy right. Patients make a medical care service contract with hospitalin the treatment process. Therefore, hospital anddoctors have confidentiality contractual obligationsfor patients. So when patients’ right of privacy has been impinged, it will happen concurrence of civil liabilities. Patients can make a choice about legal remedies on breach of contract or tort liability.When patients choose tort litigation, they can require hospital for compensation for mental damage. Hence, most of patients choose tort litigation. This essay also focus on tort litigation. The author analyzes and sorts out constitutive element of patients’ privacy right infringement referring to general privacy right infringement theory. Also, the author proposes personal opinion about identification of infringement results and compensation to mental damage which are salient in judicial practices.Rights always coexist with restrictions. In the fourth part, the author discusses the restrictions of patients’ privacy right, which is in fact the dispute between patients’ privacy right and other rights and interests. One prominent problem of patients’ privacy right in practice is its contradictions against other rights, which makes this part the key chapter in this paper. The disputes and contradictions of patients’ privacy right mainly find expression in disputes between the patients for the one and hospital’s right to know the truth, others’ interests and public interests for the other. Resolution of disputes between different rights involves measurement of them, transferring right from one party to another. The author thinks only when over insist on the protection of patients’ privacy right will post threat to patients and their right of life and death, should patients’ privacy right be restricted and the restriction needs to be controlled within reasonable range. The so-called reasonable range does not have specific and detailed regulations in laws, which depends on court’s discretion in actual cases. As a result, similar cases will have different results of judgement which will do harm to judicial fairness. Therefore, it is proposed that introduction of relevant judicial interpretation and typical cases analysis is needed to provide necessary basis for court judgement.