The research of medical malpractice

• Main Authors: Chung-Sheng Chen, 陳正昇
• Other Authors: Chenh-Erh Lin
• Format: Others
• Language: zh-TW
• Published: 2010
• Online Access: http://ndltd.ncl.edu.tw/handle/34080823838253047874

博士 === 東吳大學 === 法律學系 === 98 === Abstract The doctoral thesis title: The Research of Medical Malpractice. This dissertation studies the medical negligence from the perspectives of legal theories and the judicial cases of medical malpractice as well as the legal interpretation of existing laws. It has been going whether the civil liability of medical malpractice is applicable to Consumer Law for ten years in Taiwan. There is a strong reason (to incur defensive medical practice"防衛性醫療行為") that disagrees with applying strict liability to medical injuries cases from physicians and hospitals. This dissertation submits the reasons to readers in favor of medical negligence and thinks that we may adopt medical negligence as the judicial standard of the civil liability when medical injuries happened. Comparing with other foreign legal theories, this dissertation recommends that we may apply the Japanese legal theories(the theory of medical standard"醫療水準論") to judge the duty of care in medical negligent cases. On the other hand, this dissertation suggests the solution of the fair distribution of the burden of proof between the patient and hospital. According to the Chinese existing laws, this dissertation also tries to establish the legal structure that the hospital should be responsible for the final and main civil liability when the damages occurred by medical malpractice. The goal of this dissertation is to solve the disputes between parties in medical injuries. The structure of this dissertation is as follows: Chapter Ⅰ introduces the author's motives, purposes, ranges, methods, and main points of research. Chapter Ⅱ defines the concept of medical practice and explains relationship between medical injuries, errors and negligence. It also expounds the legal structure of medical negligence in Chinese Civil Codes. Chapter Ⅲ analyzes the standard of care in medical injuries and introduces the foreign legal theories(including American, Japanese and German) about medical negligence. It also supports the viewpoint that adopts medical negligence as the standard of duty of care in medical injuries cases. Chapter Ⅳ discusses civil negligence (including elements, obligations and the standard of duty of care) and legal obligations of medical practice. It also examines the opinions of medical negligent cases of High Court and The Supreme Court in Taiwan. In ChapterⅤ, it is the main purpose to clarify the standard of care in medical negligent cases. This chapter offers here many reasons why we may establish the medical standard as the foundation of medical negligence by learning Japanese legal theories. Chapter Ⅵ emphasizes the importance of burden of proof in medical injuries cases. In this chapter, we may submit to readers opinions how to do the fair allocation of the burden of proof between the patient and hospital by researching foreign theories. Chapter Ⅶ is a conclusion. In this chapter, we summaries full context and presents the results of chapters mentioned above. This dissertation also reviews conditions and effects that apply the theory of medical standard to medical negligent cases in Taiwan. Finally, it also tries to deal with medical dispute procedures and suggests to adopt " Mediation first" and "Arbitration option" to avoid the rigidity of the proceedings. Key words: medical malpractice, medical negligence, medical injuries, liability, hospital, medical standard, the burden of proof