| Summary: | 碩士 === 東吳大學 === 法律學系 === 99 === ABSTRACT
On investigating the legal phenomenon of "medical practice of anesthesia" in Taiwan, we astonishedly found the similar horrible truth within those serious health security incidents, such as " plasticizer ", “ toxic milk”, “influenza vaccine”, “Sister Qiu event”, “North City Hospital event”, “National Taiwan University HIV Infected Transplant events” ... and so on. Hidden behind the scenes, but day after day, existing the amazing lawless situations: mainly due to the distorted health policy of Health Department and the illegal payments of Bureau of National Health Insurance for the” rechtswidrig” and even the “criminal act” of "medical practice of anesthesia", the anesthetic employees of the tiny clinics and huge hospitals, the present Taiwan's bipolar types of medical institutes, could not be forced to yield to the reality and give up their professional specialty. Resulting in that all "medical practices of anesthesia" are almost neither " rechtmaessig " nor " proper behavior of occupation” in Taiwan. Such an extreme queer state means Taiwan’s "medical practices of anesthesia" are all illegal now. Although Department of Health has been impeached to correct the defects of its "medical practice of anesthesia" policy by the Control Yuan in 2011, the government still lazily administrate without the slightest reform.
There are two major illegal types of "medical practice of anesthesia" in the medical institutes: 1. In the huge hospitals, although the anesthetists participating "medical practice of anesthesia" (prestation act), but all adopt "one anesthetist performing anesthesia for two or more patients simultaneously”. 2. Violating the medical regulations, most tiny clinics have neither “physician practice registration” nor “previously approved physician support announcement” of the employed anesthetists. The common major illegal types of anesthetic practices are "the same operator performing both operation and anesthesia at one time", " the operator without professional competence of anesthesia instructing an anesthetic nurses to perform anesthesia " and " employment of part-time anesthetists violating the terms of physician practice registration” and “prohibition of business strife”. The above illegal anesthesia practice modes violate “duty to take care(foresee and avoid )”due to increasing the risk of anesthesia for no reason, "principle of informed consent" and "duty to explain and label” resulting in negation of “statutory justification”. Their "anesthesia contracts" are not constituted due to “lack of essentials of establishment and validation” and “discordance of the essential elements of the declared intention”. These illegal anesthesia practice modes might also apply the civil laws of "unauthorized agency", "self agency", and also the criminal accusations of "fraud", "breach of trust", "forging documents", " published forging business documents "," practicing as physician without physician license "," hiring or maintaining staff without physician license to administer medical services "and" inappropriate professional behavior of physician "and so on.
The main items of the illegal payments of Bureau of National Health Insurance for "medical practice of anesthesia" include: 1. Payment for non-anesthesia specialist performing anesthesia (intravenous general anesthesia, intravenous regional anesthesia, plexus block anesthesia, spinal anesthesia, epidural anesthesia); 2. Payments for “one anesthetist performing anesthesia for two or more patients simultaneously”. The significant negligence of concrete issues of Department of Health and the Health Bureau list as below: 1. Department of Health announced “anesthesia consent form” does not document “essential elements of the declared intention” of anesthesia contract in writing form (anesthetist to provide one to one with full presence of the anesthetic medical care). 2. The government has never executed the supervision, announcement and mark of “physician practice registration and previously approved support announcement” of anesthetists in confirmity with the medical regulations. 3. The government long-term connived medical institutes presumptuous claiming of alternative "anesthesia specialist" (anesthetic nurses) in replacement of anesthetists and providing illegal anesthesia medical services. 4 The government never exam for the concrete issues of "anesthetic medical care" as performing the hospital patient safety evaluation and supervision of medical institutes.
Because of the general, legal and medical characteristics of the multiple features of "anesthetic medical care", the basis and content of its legal norms are very different to those of general medical practices. In Taiwan, it is very rare for patients able to contact and make contracts with anesthetists directly. So that, on discussing the obligation of "anesthetic medical care", we have to shift the target level from “prestation act” to “juristical act” of "anesthetic medical care".
In this assay, based on the articles of the general principles and obligations of civil code, also with the three-step logic of "legal facts", "law application" and "legal effect" of "anesthetic medical care", we try to define the subject, object and content in the legal relationship of "anesthetic medical care", expound the definition and character of "anesthetic medical care" by the principles of law of obligations, confirm the classification and types of "anesthetic medical care" on the basis of character of the law of obligations, clarify the special essentials for the “rechtliche Handlung”and “proper behavior of occupation” of “anesthetic medical care”. Accordingly, we then take turn to study " tenor of obligation", "duty of prestation " and "contingent obligation"(Nebepflichten) of "anesthetic medical care" to explain the concrete “prestation content" and "juridical (rights and obligations) relations" of "anesthetic medical care". To define the ” unerlaubten Handlungen” and “criminal act” of "anesthetic medical care". In accordance with Taiwan's anesthesia practice state, we develop "example clause" of "standard contract" and ensure both "doctors and patients rights and obligations”, a vision to establish and compose the foundation of modern norms of Taiwan's " anesthetic medical care ".
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