| Summary: | 博士 === 國立陽明大學 === 公共衛生研究所 === 103 === Abstract
Objective
There are plenty of literatures demonstrating that courts are not the appropriate forum for resolving medical malpractice disputes. Litigations certainly are not cost-efficient in achieving either the function of damage compensation or future injury prevention. Accordingly, it has been ardently studied on how to design an alternative dispute resolution (ADR) to better suit the needs of patients and physicians in case of medical malpractice. The Department of Health in Taiwan is drafting a Medical Malpractice Dispute Resolution Act in the attempt to decrease criminal malpractice litigations .Before any policy to decriminalize medical malpractice liability is made, it is important to understand the underlying reasons why patients file criminal charges against their doctors. This research plans to conduct a comprehensive and in-depth study on designing an ADR of medical malpractice in Taiwan from the empirical and comparative angles.
Methods
1. Empirical study
Based on literature reviews and analyses of the characteristics of medical disputes in Taiwan, a questionnaire was created and distributed, through personal networks, to patients and families who had been involved in such disputes. Overall, from 23 May 2012 to 30 December 2012, 184 respondents were enrolled, 174 of them having met the inclusion criteria. All data and descriptive statistics were computed by SPSS and follow-up interviews with 2 respondents who were willing to be reached and talked about their experiences were conducted as well.
2. Comparative study
We conduct a comparative study to learn from the United States and Japan. In particular, we want to know the cost-effectiveness of American’s Apology Law, how does the empirical data tell us about the effects of truth-telling and apology. Moreover, we want to learn from the In-hospital Mediation of Japan to see how such kind of mediation is applied in medical practice.
Conclusions
The findings provide several in-depth suggestions.
1. Among all respondents, 54% directly and personally made a claim against medical providers, which indicates that in-hospital mediation should be introduced as the first and foremost measure of alternative dispute resolutions (ADR).
2. More than half of the respondents (90, 51.7%) considered it more likely to discover the truth by appealing to prosecutors, and only 37 (21.3%) admitted that their purpose to file a criminal charge was to save money. It implies that patients or families are motivated to file criminal complaints by the desire to find out the truth instead of saving money on legal fees. Thus, a truth finding mechanism would effectively channel patients and families to civil remedy.
3. The main reasons of respondents’ actions are the non-economical ones including to find out the truth and prevent reoccurrence rather than to seek for economical compensation. This finding is contrary to the conventional wisdom that patients file the criminal charges to their doctors mainly for the money.
4. 93 of the respondents (53.5%) ascribed their legal actions to the doctors’ bad attitude, and slightly more than half (88, 50.5%) chose not to sue if physicians are honest with them about medical errors. Whether doctors have apologized for injury or medical malpractice, as the data show, would influence the decision of patients and families to file a lawsuit.
5. Only 31 (17.8%) respondents agreed that medical professionals, in the case of malpractice, should not be held responsible for criminal liability, which suggests that advocates of decriminalization in the substantive law need to proffer more persuasive argument to support their cause.
To conclude, a well-designed ADR that takes patients’ needs into account would encourage patients or their families to settle malpractice disputes without resorting to criminal law procedures in court. Therefore, implementing apology laws and in hospital mediation can effectively reduce medical malpractice by satisfying the major needs to truth-finding, emotional relief and relationship repairing of patients and their families after medical harm.
Keywords: Medical Malpractice, Patients’ attitude, A.D.R., Decriminalization, Apology law, In-hospital mediation
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