The patient’s dissent and the physician’s liability for violating the duty not to act within the framework of informed consent

Abstract

This article examines patient dissent and the physician’s civil liability for breaching the duty not to act within the framework of informed consent. Drawing on legal literature and case law analysis, it explores the scope of the physician’s negative obligation, highlighting its nature as a duty not to act. The discussion distinguishes liability for violating this duty from that arising out of harm caused by the performance of medical procedures. The article argues that breaching the duty not to act constitutes an unlawful interference with the patient’s freedoms of exercise, amounting to a violation of personality rights—particularly the right to self-determination. It concludes that civil liability in such cases does not require physical or psychological harm; the infringement of the patient’s self-determination alone suffices to establish a right of compensation.