论过度医疗侵权行为与患者知情同意侵权行为的竞合

过度医疗与患者知情同意侵权是《中华人民共和国侵权责任法》规定的两种独立的医疗侵权行为。过度医疗是一种由于医师在对患者疾病治疗过程中,实施了明显超过疾病治疗实际所需的诊疗措施,而导致患者合法权益严重受损的医疗侵权行为。患者知情同意侵权行为则泛指医师在医疗过程中,由于实施了违法告知说明义务而导致患者合法权益损害的医疗侵权行为。过度医疗中由于医师履行告知义务的违法性与患者知情同意侵权行为产生竞合。这一结论不仅有利于《中华人民共和国侵权责任法》第六十三条的法律适用,同时也为患者提供了另一法律救济途径。     

知情同意：定义、模式和挑战

从知情同意产生和发展的历史、知情同意的含义和模式方面来说明产生于一定历史背景下的知情同意,在临床和研究领域,以及生物信息库的建设中,具有一定的局限性,也面临着挑战。面对这样的挑战,不应该拘泥于对知情同意概念本身如何准确表述、模式如何创新,而更应该从知情同意所要达到的目的——保护患者、受试者和样本提供者的权益来考虑。     

医疗紧急情况下知情同意的代理相关法律问题

传统的知情同意原假设是,如果病人没有充分的自主,医疗干预便不能实施,医师在知情同意中的重心是建议者而非治疗者的角色。但是在医疗紧急情况下,为着生命优先、救死扶伤的原则,知情同意严格程序形式需要作出让步,病人的昏迷状态或者濒危状态使得其无法具有自主的能力,就需要通过代理实现同意功能的延伸。紧急情况下将会遇到的非本人的其他主体能否代理、有无能力代理、会否滥用代理权等一系列相关的法律问题。     

紧急医疗时说明义务的履行

医师的说明义务是医生基本义务的重要组成部分，正确履行说明义务有助实现良好的医患沟通。对紧急医疗情况发生时“说明义务”与患者“知情同意权”的矛盾，我国还缺乏相应的法律规定。分析了说明义务的例外和“紧急医疗”的成立条件，建议完善立法，促进医疗事业的健康发展。     

对某三甲医院临床医疗告知行为现状的调查与分析

??????? 目的 基于对医生告知行为的调查,发现目前临床中存在的医疗告知行为方面的不足。方法 采用随机抽样的方式对217名医务人员进行医疗告知行为情况的调查。结果 医疗机构在医疗告知方面存在缺陷：医疗告知主体高年资医师参与度不高;医疗告知对象主要是患者的近亲属,而不是患者本人;医疗告知注重风险告知,而忽视了对患者病情及医疗方案等内容的告知。结论 目前临床工作中在医疗告知方面不足,医疗机构应该通过完善制度、培训医师及管理部门加强监管等方面来保障医疗知情告知起到其应有的作用。     

科研型电子病历在跨机构联合研究中的应用

医师的说明义务是医生基本义务的重要组成部分，正确履行说明义务有助实现良好的医患沟通。对紧急医疗情况发生时“说明义务”与患者“知情同意权”的矛盾，我国还缺乏相应的法律规定。分析了说明义务的例外和“紧急医疗”的成立条件，建议完善立法，促进医疗事业的健康发展。     

赢利性制度逻辑下的医疗异化行为及医患冲突

????? 市场化改革以来,我国诸多医疗卫生服务机构的目标从追求公益目标为主,转变为全面追求经济目标,并日益形成了一种赢利性的制度逻辑及制度安排。在此制度逻辑的诱导下,医务人员在具体的医疗过程中出现了主要以赢利为目的的医疗异化行为。这种行为是引致当前医患冲突事件频发的一个重要动因。

     

从医疗制度设计的合理性谈职业道德建设

职业道德建设是医院文化建设的核心内容,也是医院经营和管理的重要组成部分。谈论医疗职业道德必须在医学道德范畴之内,同时也必须检讨一系列的医疗的制度。道德与制度是社会治理的一体之两面,在法制社会的前提下,制度的显性作用总是影响着道德从一种“可能”向“事实”的转变,这个转变过程中的政府、医师协会、医院、医务人员、患者之间及其他相关诸多社会关系构成了道德建设的实施途径。     

医师执业行为质量安全评价体系的构建与应用

为推进落实全市改善医疗服务行动计划,进一步加强医师依法执业,落实16项医疗核心制度,规范诊疗行为,持续改进医疗服务质量,保证临床医疗科学、合理、有效,确保医疗质量安全,市卫生计生委结合实际,构建了医师执业行为质量安全评价体系。体系由4个部分组成：一是病历书写,二是医疗核心制度,三是依法执业,四是临床用血。通过病历对这4个方面进行考评,确保荆门市医疗质量得到控制并持续性改进,增强医务人员规范化的病历书写意识,促进医疗质量的全面提高。     

医生集团之法律定位研究

由于医生“去编制化”“多点执业”制度的推进以及医疗市场需求、医生权利意识的觉醒,医生集团的产生具有现实基础。基于医疗服务的公益性、“医患社会团结连带”社会法法律关系性质、医生集团的自发性、协同性、自治性的内生原因以及社会成本目标控制,医生集团法律定位应为互益性非营利组织。其实现路径以从当前普遍存在的草根团队逐步过渡到法定互益性非营利组织为适当。     

提高规范化培训住院医师在CCU沟通能力的探讨

摘要：随着生物医学模式向生物．心理．社会医学模式的转变,构建和谐的医患关系成为当今医学发展和进步的时代新要求,构建和谐的医患关系,有效的医患沟通是获得良好医疗效果的基本保证,本文总结了目前参加规范化培训的住院医师在心脏科重症监护室培训轮转期间医患沟通中存在的问题,分析了沟通障碍的主要影响因素,包括住院医师对医患关系的沟通认识不够充分,沟通技巧不够,工作负担增加,患方经济负担增加,治疗效果心理预期增加,医患双方认知差异增加,失信增加,健康和维权意识增加等都影响了医患关系的和谐构建;心脏重症监护室是心血管系统中常见病,多发病发展到终末期或急重期间的治疗场所,特点是病情急,危,重,死亡率高,结合其医患关系的实际特点,提出了提高住院医师沟通能力的可行性措施,主要包括：沟通的内容务必真实可信,形式力求形象,换位思考,注重诚信待人,加强非语言沟通,注重沟通分寸,尊重患者或家属的知情同意权,加强心脏监护室的细节规范化管理等。     

患者的道德权利在医患纠纷中的重要性

近年来医患冲突不断发生,一系列由伦理道德而引发的医疗纠纷事件反映了我国医院管理存在的问题。患者及家属的观念偏移、医患双方信息不对等、医务人员态度不佳以及医疗资源分配不均等问题均是医患冲突的影响因素。我们通过分析患者的道德权利在医患关系中重要地位,认为医务人员应当树立"以人为本"的服务理念,重视患者及家属的社会心理需求,促进医学道德的发展,构建和谐的医患关系。     

Ethical obligation and legal requirements: On informed consent practices in Bangladesh

Informed consent to medical intervention is fundamental in both ethics and law. But in practice it is often not taken seriously in developing countries. This paper provides an appraisal of informed consent practices in Bangladesh. Following a review of the ethical and legal principles of informed consent, it assesses the degree to which doctors adhere to it in Bangladesh. Based on findings of non-compliance, it then investigates the reasons for such non-compliance through an appraisal of informed consent practices in Bangladesh and provides recommendations aimed at improving such practices. The significance of this paper lies in unveiling the interdependence between the ethical and legal traits of informed consent and their ramifications on strengthening the patient-oriented approach of duty to care.     

Computer-aided decision support in clinical medicine

This paper reviews the problems and prospects involved in providing computer-aided decision support in clinical medicine. First, the evaluation of medical innovation is discussed. It is suggested that there are three criteria by which an innovation may be judged, namely (1) a need for the innovation, (2) the ability of the innovation to fulfil that need and (3) the ability to do so without transgressing practical, ethical or legal boundaries. These problems are addressed in turn. The paper suggests, taking one area of clinical medicine as an example (acute abdominal pain) there is a clear need for decision support — since the area is not handled well by doctors in current practice. Evidence is adduced to suggest that the computer can provide decision support and do so without transgressing professional, ethical or legal boundaries. The obstacles to progress, which stand in the way of widespread implementation are briefly discussed. These are lack of medical terminology, poor man-machine interface and above all a lack of co-ordination. Finally, it is suggested that the most valuable facet of current systems is the discipline and precision in data collection they impose upon practicing doctors.     

The Doctor-Patient Relationship: A Survey of Attitudes and Practices of Doctors in Singapore

This article reports the results of a survey, by mailed questionnaire, of the attitudes, values and practices of doctors in Singapore with respect to the doctor-patient relationship. Questionnaires were sent to a random sample of 475 doctors (261 general practitioners and 214 medical specialists), out of which 249 (52.4%) valid responses were completed and returned. The survey is the first of its kind in Singapore. Questions were framed around issues of medical paternalism, consent and patient autonomy. As the doctors were exposed to Western ethical concepts in their training, we were not surprised to find that they would mostly allow patients some say in decision-making and keep patients reasonably informed. In respecting patient autonomy, they would usually seek to influence patient choice by persuasion. However, the residual 'Asian-ness' of doctors in Singapore gives rise to some inconsistencies between values and practices. Many doctors still believe that a number of their patients are incapable of rational choice. There is some lack of openness in telling patients the whole truth. When patients choose to refuse treatment, many doctors are prepared to involve family members in making a consensus decision.
Doctors were also asked how they made ethical judgements in the face of dilemmas, and how they would like disputes with patients to be resolved. By and large, the doctors prefer to make their own judgements rather than to rely on rules. They also wish to keep the law courts out of disputes with patients, preferring less public ways of settling disputes.     

Underperforming doctors: a postal survey of the Northern Deanery

Objectives: To discover the perceived size of pool of doctors considered to be underperforming in general practice in the Northern Deanery and to discover whether these perceptions are based on formal assessments. Design: Postal questionnaire. Setting: Area covered by the Northern Deanery. Subjects: Seven health authority directors of primary care, seven secretaries of local medical committees, and 14 chief officers of community health councils. Results: The response rate was 100% for directors of primary care and secretaries of local medical committees and, after one reminder, 92% for chief officers of community health councils. Numbers of doctors perceived to be underperforming ranged from none to over 15 in different health authority areas. Main areas for concern were communication skills, clinical skills, and management skills. Patients’ representatives were concerned about lack of power of patients and health authorities and doctors’ lack of accountability. Health authorities were concerned about lack of power, identification of underperforming doctors, and doctors’ professional loyalty. Local medical committees were concerned about the problem of identifying underperformance. A number of methods were used for identification, and there was no common method applied. Conclusions: The number of doctors thought to be underperforming was small. Work still needs to be done on developing tools that can be used in everyday practice to enable doctors to confirm for themselves, their colleagues, and their patients that they are providing an adequate level of care.

Key messages

• To quantify the problem of underperforming general practitioners in the Northern Deanery, a postal survey was carried out among representatives of healthcare commissioners, doctors, and patients
• A small but not insignificant number of doctors were identified as providing a poor level of performance
• Main areas for concern were communication skills, clinical skills, and management skills.
• Various methods were used for identifying underperforming doctors, but there was no common method applied
• Perceived problems with the present system of dealing with underperforming doctors included identification, lack of power of patients and health authorities, and doctors’ professional loyalty and lack of accountability

     

Not the doctor’s business: Privacy,personal responsibility and data rights in medical settings

This paper argues that assessing personal responsibility in healthcare settings for the allocation of medical resources would be too privacy-invasive to be morally justifiable. In addition to being an inappropriate and moralizing intrusion into the private lives of patients, it would put patients’ sensitive data at risk, making data subjects vulnerable to a variety of privacy-related harms. Even though we allow privacy-invasive investigations to take place in legal trials, the justice and healthcare systems are not analogous. The duty of doctors and healthcare professionals is to help patients as best they can—not to judge them. Patients should not be forced into giving up any more personal information than what is strictly necessary to receive an adequate treatment, and their medical data should only be used for appropriate purposes. Medical ethics codes should reflect these data rights. When a doctor asks personal questions that are irrelevant to diagnose or treat a patient, the appropriate response from the patient is: ‘none of your business’.     

Charitable State-Controlled Foundation Human Tissue and Cell Research: Ethic and Legal Aspects in the Supply of Surgically Removed Human Tissue For Research in the Academic and Commercial Sector in Germany

Tissue engineering using human cells and tissue has one of the greatest scientific and economical potential in the coming years. There are public concerns during the ongoing discussion about future trends in life sciences and if ethic boundaries might be respected sufficiently in the course of striving for industrial profit and scientific knowledge. Until now, the legal situation of using human tissue material for research is not clear. Accordingly, transparency of action and patients' information are a central component when handling patient material inside and outside of the patient-specific treatment. Whereas in the field of therapeutic use of tissue (e.g. transplantation) there is an emergency situation by the shortage of organs with the risk of the premature death of the potential recipient, this cannot be claimed for tissue donation for research. The basis of every surgical operation is the treatment contract, which places the doctor under obligation to the careful exercise of medical treatment containing the patient's informed consent. This contract only covers the treatment that is intended to cure the patient and the medical measures that are necessary therefor. The further scientific use of body-substances, which are discarded after an operation, are not included. Therefore a personal and independent written enlightenment of the patient and a declaration of informed consent is necessary. Examples of guidelines for tissue supply, Patients information and consent were worked out by theologists, lawyers, scientists and physicians reflecting their practical experience in transplant surgery and liver cell research. As a consequence to cover the ethical and legal aspect of tissue donation in Germany a charitable state-controlled foundation Human Tissue and Cell Research (HTCR) was introduced and established.