紧急医疗职责与知情同意权的冲突与平衡

Conflict and balance between emergency medical responsibilityand right of informed consent

基于一般法学原理,从两则案例入手分析,认为医疗职责与知情同意权存在对立统一关系。对于紧急情形下二者之间的冲突,应当区分不同情形予以精细化的平衡,现行《侵权责任法》和《最高人民法院关于审理医疗损害责任纠纷案件适用法律若干问题的解释》虽然已经做出了一些努力,但在紧急状态的界定、医疗行为的监督、患者及代理人意见处理、医疗责任的归结等方面存在诸多不足,应予完善。此外,仅凭法律一元化的规制方式仍不足以解决紧急医疗职责与知情同意权之间的冲突,还应借助多元化的手段进行平衡。

Based on the general principles of law,this paper analyzed from two cases that there were a unity of opposites between medical responsibility and informed consent.For emergency situation between the two conflicts,itwasnecessary todistinguish between different situations to intensification of balance,the current The Tort Lawand The Medical Damages Responsibility Judicial Interpretationalthough has made some effort.But in the definition of a state of emergency,the supervision of medical practice,the patient and the agent processing,medical liability down etc,there were many disadvantages that should be perfected.In addition,the regulation method of legal unification was not enough to solve the conflict between emergency medical responsibility and informed consent,and it should balance with diversified means.