Judicial Empirical Study On The Effectiveness Of Operation Informed Consent

According to Article 23 of the ―Medical Records Document‖,operation informed consent refers to a medical document in which the treating physician informs the patient about the intended operation and the patient decides whether to sign the consent before the operation.As a written carrier for recording the legal relationship between doctors and patients,the surgical consent form is becoming more and more important in clinical practice and has a significant impact on coordinating the physician-patient relationship.However,in practice,due to the disputes between the doctors and patients about the validity of the operation informed consent,disputes and conflicts have arisen between the two parties,which are both a social focus and a judicial problem.The research on the validity of operation informed consent has a lot of existing literatures,but most of them focus on academic research.These studies mainly discuss the legal nature,content,signing subjects and responsibility distribution of operation informed consent.Although these articles provide theoretical and methodological support for the validity of operation informed consent,there is generally a lack of systematic research on the application of law,and judicial case studies are weak.This article is based on the judicial empirical research method,takes the court judgment documents as the research object,and systematically re-examines the validity of the operation informed consent from the perspective of empirical research.Through research,it has been found that in judicial practice,the courts mostly use the ―The Tort Law of the People’s Republic of China‖,―Interpretation of the Supreme People’s Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury‖,―Interpretation of the Supreme People’s Court on Problems regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts‖ and other laws and regulations as the basic basis.However,due to the obvious lack of legal validity of the consent to surgery,there are many differences in the judgments of local courts,mainly manifested in that different courts at different levels in different regions have different judgment ideas on the subject of signature,notification obligation,text content,causality,and whether the appraisal opinion is adopted.Therefore,different judgments in similar cases are more prominent.To a certain extent,these phenomena have exacerbated the differences in the rights of the parties.This article believes that operation informed consent should be based on protecting the patient’s maximal interests,reasonably define the boundaries of the rights and obligations between the doctor and the patient,and clearly sign that the subject is the patient with the ability to consent.The right to informed consent can only be transferred to a proxy agent if it is "inappropriate" or "unable".From the legal point of view,the content of the consent form should reflect the balance between the patient’s right to informed consent,the right to life and health,and the right to emergency treatment,the eligibility of the patient’s subject,the comprehensiveness of the medical party’s obligation to inform,and the violation of the legal requirements of the operation informed consent responsibility.This article will be divided into four parts: the first part discusses its related concepts,legal relationships,and legal characteristics by sorting out the basic theories of operation informed consent;the second part,through the statistics and analysis of related judicial cases related to operation informed consent from 2018 to 2019,systematically studies the judicial status of the legal application of surgical consent from three aspects: the validity,invalidity,and other factors affecting the validity of consent;the third part,which based on the results of the empirical research in the previous article,evaluates the legislative and judicial issues in the practice of determining the validity of the operation informed consent;the fourth part,in view of the problems summarized in the previous section,suggestions for improving related issues such as the validity of the operation informed consent are put forward.