A Comparative Contractual Theory Perspectives of the Relationship between Physicians and Patients in Different Health Provider Systems － Focusing on the Difference between Doctors’ Contractual Liability in Taiwan and United State of America

• Main Authors: Hsiu-Cheng Hsu, 許修誠
• Other Authors: Jen-Kong Kuo
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/75893777884543503246

碩士 === 中原大學 === 財經法律研究所 === 99 === Medical contracts were recognized as one kind of mandate-like contract between patients and medical institutions in Taiwan. They are formed after the patients make offers to the medical institutions via media or at the registrars where acceptances were then given by the registrar’s persons or their equivalents on behalf of the institutions. In the United States, the offers were tendered by the patients whereas the acceptances were given by the physicians they visited, rather than given by the institutions. If the physicians are employees, the institutions owe the duty to the patients on the theory of respondent superior. If the physicians are independent contractors, the institutions traditionally are not responsible to the physicians’ negligence except the housekeeping responsibility In the early United States, the medical institutions are immune from medical liability because of their chartable propensities. However, this view had been restricted; instead, concerning the patient protection, the theories of institutional liabilities had been proposed, which included housekeeping, vicarious, organization, and un-delegable liabilities. After the launch of health maintenance organizations (HMOs), the medical liabilities were imposed upon the entire stream of medical industry, from HMOs to the doctors. The medical institutions should protect the prospective patients on the theory of pre-contractual liabilities. It requests the institutions disclosing the information to the prospective patients about infection control ability and the physicians’ ability. However, the intensity of legal regulations is different between Taiwan and United States. The requirement of informed consent is subjectively patient-oriented in Taiwan. The judicial issues of medical malpractice litigations in Taiwan are: the doctors’ mistakes during the courses of practice, the obedience of the medical routines and the causations; however, they are too abstract. The doctrine and the defense of standard of care in the United States are clear and easier to be followed. The nature of medical contracts in emergency situation remains unclear, especially when the patients are unconscious. This article suggests modifying the related articles in civil codes focusing on the regulations about the management of affairs without mandate. The theories of direct and derivate contractual liabilities remain inconclusive in Taiwan, which affect the scopes of contractual liabilities and lead to different results in judgments. Differentiate “promising a specific therapeutic manner” from “promising a specific therapeutic outcome”, which is more close to the hire of work, is helpful to define the scope of contractual liability. The scope outside the purpose of health-check contracts had been considered by some courts as an exemption of contractual liability, but some courts not. The liability of the physicians who tender services to the patients without physical contacts should not be treated differently with those who service in the presence of patients. The numbers of the medical contracts in the courses of medical service are debated, some authors suggest single, some multiple. This article sustains the view of single contract on the basis of contractual modifications. The doctor’s therapeutic decision-makings in Taiwan are greatly interfered by the regulations and bylaws issued by the monopolized governmental HMO. However, the legal systems, in contrast to the United States, do not charge the HMO who only focuses on the budget management the responsibility to prevent physicians’ negligence. The situations of doctors get worse due to the article 188 of civil code which allows the institutions to ask for the remedies from the employees when malpractices occurred. This article suggests the whole medical enterprise in Taiwan should share the duties to the mal-treated patients. It proposes using the direct and indirect types of medical judgment errors to reinvestigate the share of the responsibility within the medical industry.