The Substitution of Medical Discretion for “Yi Liao Chang Gui”: A Fundamental Thinking of the Application of Law on Medical Malpractice Case

• Main Authors: LIN, KUNG-KAI, 林工凱
• Other Authors: CHENG, YAT-CHE
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/kz642u

碩士 === 銘傳大學 === 法律學系碩士在職專班 === 104 === The start point of the research on duty of medical practice should be duties of medical practitioners in the field of medical care, thereafter expand its scope to the field of Criminal Law and Civil Law. The thesis determines at the beginning the definition of medical practice, duty of medical practice, important issues in the process of medical care, and the role of medical intervene in the disease process. Then follows the simple discussion on liability of medical practice in the field of Criminal Law and Civil Law. Under which the main concept of medical standard of care in Taiwan is “yi liao chang gui (醫療常規)”, an ambiguous terminology which sometimes refers to medical custom but mostly a mixture of medical custom, clinical practice guideline, and evidence-based medicine. Either the prosecutor or the judge would commission the malpractice case to Medical Review Committee for further assessment as out-of-court expert examination. The main inquiry to the expert witness would be, “Did the medical practice meet the standard of ‘yi liao chang gui’?”, and such standard turn out to be the substantial standard of care in medical practice litigation. The thesis focuses the discussion on the issue of “yi liao chang gui”, including medical custom, clinical practice guideline, and evidence-based medicine. After comparing with medical standard of care in common law system and Japan, the thesis criticizes the reasonable existence of “yi liao chang gui”, especially in the unknown, complex, emergent and end-of-life medical conditions. Furthermore, regarding the falsifiable and ever-changing nature of medical science, the steadiness of jurisprudence should not rely on such unknown or unsteady basis, as is the case in “yi liao chang gui”. Therefore, the thesis turns to cognitive psychology and finds out the decision-making process of medical thinking. In addition to the intrinsic thinking process, there are some factors to be regarded, e.g. outer resources, doctor-patient interactions, before final medical decision is made. To some extent analogous to Administrative discretion, the thesis discusses the possible of medical discretion and the room, the limit of such discretion. Finally, the statutory standard of medical care should not be such mechanic or rigid due to the complex interactions of clinical expertise, medical evidence, and patient value, which should have taken the necessity of deviation from “yi liao chang gui” into account. The thesis proposes an instruction when the malpractice case is sent to the expert witness and suggests a modification of the Medical Care Law to leave leeway for medical practice, and to protect the procedural and substantive right of law justifiable to the defendant physician in Taiwan.