Medical Ethics, Medical Customs and Medical Malpractice

• Main Authors: Chien-ChiuHuang, 黄健秋
• Other Authors: Chen-Chung Ku
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/7bvk9k

碩士 === 國立成功大學 === 法律學系 === 106 === Infringement of objective duty of care is one of objective constitutive elements to determine the criminal liability of negligence. However, for a long time, it is a controversial issue concerning the specific content of objective duty of care. The thesis studies the issue within the scope of medical malpractice, and initiates the discussion by two points of view. On one hand, the relationship between the law and the ethics has been a long-lasting subject to scholars in law and in philosophy. In the opinion of much material commonality, despite the differences of some formal aspects, some advocate the legal status for professional ethic norms. On the other hand, resulting from the limitation of different professions, judicial practice has to rely mainly on medical customs in the judgment of medical malpractice. Being professional customs, medical customs include not only professional knowledge but also, ideally, professional ethics, which comes from the distinction between professions and general occupations. The thesis starts with the exploration on the implication and the function of both medical ethics and medical customs. It then determines the nature of medical customs in normative implication by converging with medical ethics, called “medical customs in law”. Following analyses of “medical customs in fact”, they are compared with “medical customs in law” in order to find a better solution which plays a symbolic role in the judgment of medical malpractice. In the section of clinical cases, it shows the convergence of medical ethics and medical customs in the explanation of medical offenses with the issue of “informed consent” and the convergence of medical ethics and medical customs in the explanation of medical malpractice with the issue of “drug hypersensitivity test” respectively. It analyses medical scenarios by using the viewpoints of medical law and medical ethics and concludes with its own opinions. Meanwhile it clarifies the criminal systemic position of relevant medical ethic principles, practical application in actual scenarios and clear assistant standard in the judgment of medical malpractice. Over ninety percents of domestic medical care institutions make contracts with the Bureau of National Health Insurance of the Department of Health. National Health Insurance Act and derived rules have highly controlling effect on medical service. There should be little controversy that “The National Health Insurance Pharmaceutical Benefits and Reimbursement Schedule” and “The National Health Insurance Medical Service Items and Fee Schedule” are “medical customs in fact”. Because their formulations are based on democratic procedure and they state medical service meeting so called “a decent minimum of health care” in detail, it could be convinced that they are highly in conformity with principles of medical ethics and are therefore standards being closest to “medical customs in law” so far. They are worth considering as assistant judgment standards of medical malpractice in judicial practice.