Abstract:

 Objective To study the characteristics of judicial expertise cases of medical damage related to violation of notification obligation, and to distinguish informed notification and informed consent. Methods  55 cases of medical damage liability disputes in violation of the duty of disclosure were reviewed, and the grades and departments of hospitals were divided. The forms and ways of failure to fulfill the duty of disclosure were classified and statistically analyzed. Results Most of the cases occurred in tertiary and secondary hospitals, accounting for 90.9%; Violation of the obligation to inform mainly occurred in obstetrics and gynecology department and orthopedics department; There are 67 faults in violation of the duty of informing, including 42 faults of failing to inform, 21 faults of insufficient informing, 2 faults of delaying informing, 1 fault of informing and 1 fault of informing but not agreeing; There are 16 faults that are presumed not to fulfill the obligation of disclosure to participate in the consequences of damage, of which 15 are minor causes, 1 is the main cause, and 51 faults are presumed not to participate in the consequences of damage. Conclusion In the judicial appraisal of medical damage caused by informed consent disputes, it is necessary to investigate whether the medical institution has informed, whether the informed is sufficient, whether the informed is wrong or delayed according to the tort liability law, relevant laws and regulations, department rules and clinical practice. Analysis of medical staff have the obligation to inform and bear the responsibility for medical damage.

Key words:

informed obligation, informed consent, forensic appraisal, medical damage, tort liability law

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摘要：

目的 探讨违反告知义务相关医疗损害司法鉴定案例的特点，区分知情告知与知情同意。方法 回顾55例存在违反告知义务的医疗损害责任纠纷鉴定案例，划分医院级别和科室，对未尽告知义务过错的形式和告知方式等进行分类和统计分析。结果 知情告知纠纷案例大多发生在三级医院与二级医院，共占比90.9 %；违反告知义务主要发生在妇产科和创伤骨科；认定违反告知义务过错共计67处，其中未告知42处，告知不充分 21处，延迟告知2处，错误告知与告知但未同意各1处；推定未尽告知义务过错参与损害后果的共16处，15处原因力为轻微原因，1处原因力为主要原因，51处过错被推定不参与损害后果。结论 知情同意纠纷的医疗损害司法鉴定中，要按《侵权责任法》及有关法规、部门规章以及临床诊疗常规等，围绕诊疗中的告知内容及方式，考察医疗机构有无告知、告知是否充分、是否错误告知或者延误告知等，分析医务人员有无尽到告知义务并承担医疗损害责任。

关键词:

告知义务, 知情同意, 司法鉴定, 医疗损害, 侵权责任法