违反告知义务损害赔偿责任类型研究

Research on the Type of Compensation for Breaching Informed Duty

医疗机构及其医务人员只要违反了告知说明的义务,就认定其有过失。这一做法不合理地加重了医疗机构的负担。医疗机构没有告知时,患者没有同意的医疗行为如果符合无因管理要件,可阻却其违法性,而患者明确表示同意的,则因双重同意而阻却该医疗行为的违法性。患者虽同意,但却是基于医师的不真实说明或不完全说明的,患者的同意不是当然无效,而是可以依《合同法》享有的撤销权决定该同意是否有效,进而决定医疗机构是否构成损害赔偿责任。

In our country, it is believed commonly that as long as medical facility and its staff breached informed duty, medical malpractice would be affirmed. That increases the burden of medical facility. When medical facility did not inform, medical practice without patients＇ consent would be justification if this activity comply with the requirement of negotiorum gestio; medical practice with patients~ consent would be justification because of double consent. If doctor＇s information was not real or incomplete, patients~ consent were not invalid of course, hut were decided by their rescission rights according with Contract law, and then weather medical facility should be responsible would be decided too.