Research On The Balance Between Emergency Medical Behavior And The Right Of Informed Consent

At present,medical dispute has become one of the most typical social contradictions in China’s social transformation period.The conflict between doctors’ emergency medical behavior and patients’ informed consent right is one of the important causes of doctor-patient conflicts and disputes.Starting from the "li liyun incident" and the "yulin pregnant woman jumping off a building incident" in 2017,article 56 of tort liability law and relevant judicial interpretations have been issued successively.However,there are still many problems such as legislative conflicts and gaps in legislation and so on.Theoretically,the research on this issue is not in-depth and systematic.In this context,this paper studies the conflict and balance between emergency medical behavior and informed consent right in legislation and theory.In addition to the introduction and conclusion,this paper is divided into four chapters:Chapter one,emergency medical behavior and informed consent right and their relationship.This chapter discusses the core elements of emergency medical responsibility,extracts the connotation of emergency medical behavior,and holds that emergency medical behavior is an obligation of doctors and the rights of patients.At the same time,the connotation of informed consent right is studied and analyzed.Emergency medical behavior and informed consent right have the opposite and unified relationship in emergency situations,and there is room for the conflict between them to be alleviated.Chapter two,is about the conflict and type of emergency medical behavior and informed consent right.Based on the definition of basic propositions and basic concepts,this chapter further analyzes the root causes of the conflict and confrontation between emergency medical behavior and informed consent right,and holds that the conflict is fundamentally a game between legal values,which is embodied in the expansion of patients’ informed consent right and the misconduct of emergency medical behavior.Due to the particularity of the informed consent right,it is difficult to balance the two rights.This chapter makes a detailed analysis of the types of conflicts between the two rights from four aspects:imperfect exercise of the informed consent right,no one exercising it,abuse of the right and full exercise of the right.Chapter three,the balance and theoretical analysis of emergency medical behavior and informed consent right.In this chapter,on the basis of the detailed analysis of conflict types,a method of precise balance is proposed,and the generality of different conflict types is summarized to find the theoretical support.It is considered that different types of conflict should be balanced with different theories or principles,rather than trying to solve all types of conflict with one balanced theory or model.These theories or principles mainly include the theory of "legal fatherhood",the principle of patients’ "best interests",the principle of social and public interests and the theory of rights.Chapter four,the legislative proposal of the balance of the two and the assumption of the multiple balance mechanism.Based on the theoretical research on the balance between emergency medical behavior and informed consent,this chapter investigates the problems and deficiencies in China’s legislation,and concludes that there are many problems in the current law on emergency medical behavior,the right to informed consent and the balance between them,which should be improved.At the same time,the balance method of legislative unification is not enough to completely solve the conflict between emergency medical behavior and informed consent right.