Article 1226
Medical establishments and their medical personnel shall keep patients' privacy and personal information confidential. Those who leak the patient's privacy and personal information, or disclose their medical records without the patient's consent, shall bear tort liability.
1. The main purpose of this article
This article is about the protection of patients' privacy and personal information.
II. Evolution of the Provisions
Article 62 of the original Tort Liability Law provides for the protection of patients' privacy, and Article 1226 of the Civil Code has also undergone some changes on the basis of continuing the provisions of the original Tort Liability Law. First, the object of protection is expanded from the patient's privacy to the patient's privacy and personal information, so as to be consistent with the chapter "Privacy and Personal Information Protection" in the Personality Rights section of the Civil Code; secondly, the wording "causing damage to the patient" is deleted, and it is stipulated that those who disclose the patient's privacy and personal information, or disclose their medical records without the patient's consent, shall bear tort liability.
In the process of compiling the Civil Code, the legislator considered that the disclosure of patients' privacy and personal information by medical institutions and their medical staff, or the disclosure of patients' medical records without their consent, is a relatively serious infringement, which will objectively inevitably cause certain harmful consequences to patients, and the law should clearly stipulate this based on strengthening the protection of the privacy and personal information of natural persons in diagnosis and treatment activities. Therefore, on the basis of absorbing Article 62 of the original Tort Liability Law, the phrase "causing damage to patients" is deleted to achieve the positive effect of clearing up the source, reducing the burden of proof on patients, and strengthening the protection of patients' rights and interests.
3. Interpretation of Provisions
This article regulates the liability for the disclosure of patients' privacy and personal information.
Patients have no privacy with medical staff. In the process of diagnosis and treatment, in order to enable medical staff to accurately diagnose the disease, patients will inform patients of their privacy and personal information, and the medical records formed during the diagnosis and treatment process of patients are themselves patients' privacy and personal information. Medical institutions and medical personnel have a duty of confidentiality, and shall not disclose and disclose patients' privacy, personal information and medical records. Acts of leaking patients' privacy or personal information or disclosing patients' medical records without authorization are all acts that infringe on patients' rights to privacy and personal information, and the perpetrator shall be liable for compensation.
The tort liability that medical institutions should bear for infringing on patients' privacy and personal information rights is in competition with the right to claim personality rights as provided for in the Civil Code. Article 995 of the Civil Code stipulates: "Where personality rights are infringed, the victim has the right to request the perpetrator to bear civil liability in accordance with the provisions of this Law and other laws." The provisions of the statute of limitations do not apply to the victim's right to request cessation of infringement, removal of obstacles, elimination of danger, elimination of impact, restoration of reputation, and formal apology. "The patient may claim damages in accordance with the provisions of this article, and may also request the medical institution to bear other civil liabilities in accordance with the provisions of Article 995. The provisions of this article are special laws, and it is more appropriate for the injured patient to request the medical institution to bear tort liability in accordance with the provisions of this article.
4. Cases
Fu Mouwang et al. v. Dongfang People's Hospital, a dispute over medical damages
Facts: Fu Mouyuan went to Dongfang City People's Hospital for infusion treatment due to cough and vomiting, and then went to Dongfang City People's Hospital for treatment, his condition suddenly worsened, and he died after rescue efforts failed. In an interview, Dongfang People's Hospital claimed that Fu Mouyuan's death was related to the sexual assault he had suffered before his death. Fu Mouyuan's relatives, Fu Mouwang, and others believed that Dongfang People's Hospital had violated its confidentiality obligations to patients, so they filed a lawsuit with the court, requesting compensation for losses. The court of first instance held that the medical staff of Dongfang People's Hospital claimed to the media that the victim was suspected of being sexually assaulted, and that it had infringed on the victim's privacy and relatives without the investigation conclusion of the public security organ, and should bear tort liability. Dongfang People's Hospital appealed against the first-instance judgment on the grounds that the first-instance judgment was erroneous in applying the provisions of Articles 16 and 54 of the Tort Liability Law. The court of second instance held that the claim was misunderstood by the Dongfang Municipal People's Hospital, and that the court of first instance's determination was not improper, and that it had stated in the attached article that it was subject to article 62 of the Tort Liability Law, but that the applicable legal provisions were omitted from the judgment document, and this court corrected it.
5. Analysis
This case concerns the confidentiality obligations of medical institutions and their medical staff. Based on the diagnosis and treatment activities, medical institutions and their medical staff will know the basic information of the patient, and they will also have important private and personal information such as the patient's medical history and patient condition. In this regard, medical institutions and their medical staff have a duty of confidentiality and shall not disclose the privacy or personal information of patients. If the confidentiality obligation is violated and the privacy and personal information is leaked, the medical institution shall be liable for medical ethical damages. In this case, Dongfang People's Hospital was aware of Fu Mouyuan's past medical history and the patient's condition during his medical treatment, and should have fulfilled a high degree of confidentiality obligations, including both active confidentiality obligations, i.e., properly keeping his medical records, and passive confidentiality obligations, i.e., not divulging or disclosing his relevant privacy and personal information without the patient's consent. However, Dongfang People's Hospital, without Fu Mouyuan's consent, violated the confidentiality obligation by disclosing to the media the patient's privacy based on the medical records and should bear tort liability. At the same time, Dongfang People's Hospital claimed to the media that the deceased was suspected of being sexually assaulted, which caused damage to the deceased's reputation, and should bear tort liability for infringing on the deceased's reputation.