我国侵权责任法知情同意条款评析

On the informed consent sections of Tort Liability Law

我国《侵权责任法》知情同意条款存在许多可资称道之处,比如,它明确了违反告知义务将导致侵权损害赔偿责任,坚持了"信息告知"与"诊断治疗"两种情境的区分,就医务人员的告知义务和例外做出了原则规定,没有赋予"法律、行政法规、规章以及其他有关诊疗规范的规定"以终局性。但是,它也有许多值得进一步完善之处,它需要进一步凸显知情同意规则的特质、明确信息披露的标准、启用"实质性信息"概念、紧缩"医疗特权"的适用范围。

The informed consent sections in Chinese torts legislation has some good points, such as it makes it clear that breach of the duty to inform will incur torts liability, it draws a distinction between information disclosure and diagnosis/treatment, it stipulates a medical practitioner＇s duty to warn and its exceptions, and it denies the conclusive nature of statutes and medical customs in establishing medical negligence. However, it still has some room for improvement. It needs to do more to highlight the distinctive nature of informed consent rule, it needs to choose the standard of information disclosure, it needs to adopt the concept of ＂material information＂ and it needs to tighten the use of therapeutic privilege＂ exception.