The Hypothetical Consent of the Second Surgery Which Was Incompatible with Medical Standards
As a cosmetic surgeon, the accused performed the firstliposuction for the patient A, informing the risks of theliposuction and the anesthesia according to the obligation.The patient A consented as well. After that, the patient Aunderwent the second liposuction because of the accused’ssuggestion. However, the risks of the surgery wasn’tinformed this time. Besides, during the second liposuction,the accused hired an undisciplined chemical student as anassistant of the surgery which thought that he was capableto monitor the patient A’s physiological condition. Theaccused overdosed A, ignoring that there was a sign ofthe suppression of A’s breathing. Furthermore it was lackof preparation for the accused to response the emergencyduring the surgery. A dead eventually. According to theHigher Regional Court, the accused didn’t mean to injurythe patient A to death. On the ground of A’s hypotheticalconsent, what the accused did was rather negligenceinjuries to death. After the accused and the patient A’s wifeappealed, the supreme court invoked the judgment made bythe Higher Regional Court, deeming that, since the surgerybelongs to an intended injury, the consent of the patientcould only be hypothetically valid and the surgery wouldnot be illegal on the ground of the hypothetical consent,when the patient might still consent, even though the risksof the surgery, including medical courses and the survivalrate, were not informed. Nevertheless, if there was nofurther informing, the consent of the patient was only validin respect of the surgery which was performed accordingto the medical standards. The validness of the consentfor the first surgery couldn’t extend to the second one, asthe hypothetical consent. The issued second surgery wasincompatible with the medical standards. Besides, duringthe reviewing the hypothetical consent of the patient, itshould be taken into consideration whether the patient Amight consent to the surgery, even if he knew the secondsurgery was less prepared than the first. In this regard,the supreme court figured that there was no hypotheticalconsent in the issued case and the second liposuctionperformed by the accused was still an illegal intendedinjury.