醫療侵權責任之過失判定

Abstract

醫療過失係論斷醫療民事責任成立與否之核心要件，亦為我國醫療法歷次修法之重點。觀諸晚近比較法上認定醫療過失之趨勢，如英美法所採之「理性醫師」注意標準、德國法所採之「專業水準」、抑或日本法及我國法所採之「醫療水準」，皆係規範性、相對性的注意標準，須依個案情節而為調整。亦即，法院於認定醫療行為是否具有過失時，須考量醫療常規、鑑定意見、病人之特殊情狀、醫師診療行為之風險及未為診療之損害、診療之益處及成本等諸多因素，綜合判斷之。再者，醫療糾紛之爭點甚為龐雜，有與檢查相關之醫療糾紛、有與診斷相關之醫療糾紛、有與治療相關之醫療糾紛、有與醫療機構之組織設備相關之醫療糾紛、亦有與違反告知說明義務有關之醫療糾紛。此等不同糾紛類型可能涉及之過失態樣不盡相同，醫師於相關醫療過程中之專業裁量亦有差異，難以有統一之注意標準。 凡此，皆使法院於認定醫療過失上相對困難，亦增加判決結果之不確定性。建構明確且具備法安定性之醫療過失判定體系，將醫療爭議予以類型化，或許係一可行之切入點。比較法上英美法、德國法及日本法之文獻已有開始將醫療爭議案件予以類型化，並分析法院於各別案件類型中判斷醫療過失之規則，然而我國文獻迄今卻仍缺乏相關著述。本研究之目的，即在研介比較法上關於醫療過失判定之基礎理論及訴訟案例，並嘗試融入醫療臨床工作者之視角，將醫療民事糾紛之爭點類型化，以建立醫療民事責任過失判定之操作體系，俾供我國學界及實務界參考。

Negligence is the crucial cornerstone for establishing the liability of medical practitioners, and has been the focus in the past several amendments of the Medical Care Act. In medical malpractice suits, many courts around the world used to adopt the “medical customs” as the standard of care to judge the presence of negligence. However, in the common law system, currently the courts are using the “reasonable physician” standard, instead of “medical customs,” to determine professional negligence in medical litigations. A similar trend could also be observed in Japan and Taiwan. More and more courts in Taiwan are trying to differentiate between the “medical customs” and the “medical level,” a term adopted from the Japanese medical law, which is conceptually close to the “reasonable physician” standard in the common law system. According to Article 82 of the Medical Care Act, medical negligence shall be determined based on a variety of objective conditions, including the customary medical practice, medical level, medical facilities, working conditions, and level of emergency or urgency in the locality at the time of practice in the medical field concerned. Moreover, the determination of medical negligence also involves a diversity of medical malpractice disputes, including medical errors related to examinations, diagnoses, treatments, informed consents, as well as institutional liabilities of the hospitals. All these factors together contribute to complexities and difficulties in the determination of medical negligence. Recently, scholars in U.K., German and Japan have started to address this issue through categorizing the medical malpractice disputes. In this dissertation, the author performed comparative legal research by reviewing the literature and cases across different countries. By analyzing the theories and cases of both the common and continental legal systems, this dissertation proposes an algorithm which can help in classifying medical malpractice disputes and determining the presence of negligence in each specific category.