Civil Duty on Surgical Malpractice
| Autor: | Ching-chang Hung, 洪慶彰 |
|---|---|
| Rok vydání: | 2010 |
| Druh dokumentu: | 學位論文 ; thesis |
| Popis: | 98 Operation-related medical disputes top the list of medical blunders, and the following three departments have the highest percentage of such occurrence: surgical, obstetrics ＆ gynaecology, and anaesthesiology. Disputes concerning operation-related medical incidents are hard to clarify and involve the nature of the operations. First of all, operations are noxious (very destructive and very constructive). If the result is not as good as or even worse than expected, then hope will turn into disappointment that inevitably leads to confrontations. Secondly, the operating theatre is off-limits to outsiders, where family members are not present and the patient is in a state of unconsciousness. If a living patient comes out of the operating theatre dead, it is not hard to imagine the doubt and rage of the family. Thirdly, due to perceptional difference, it will be hard to reach a consensus when there is a dispute of cause and effect between doctors and patients. The lack of judges who are proficient in the medical field makes the judgement on the case even harder. Lastly, operation-related medical treatments are a typical example of organisational medical treatment; the affiliated medical staff fulfil their respective duty to achieve a common goal. In the event of patient injury or death, professional judgement is required to determine what gives rise to it, who, when and at which point. This study summarises and illustrates with actual examples of the possible application of legal principles on operation-related medical blunders: 1.The determination of medical blunders. Article 82 of the New Medical Law clearly adopts the principle of liability for negligence. According to existing laws, the Consumer Rights and Interests Protection Law governing the strict liability of service provided should not be applied to medical treatments. The objectified determination of medical blunders is based on the ground that the party inflicting the injury should be responsible for compensatory damages, and is a determining factor in medical blunders: standard of doctor, standard of medical treatment, environmental of medical treatment, discretion of medical treatment, laws and regulations, trial of medical treatment, and urgency. 2.There exists a cause and effect relationship between conduct and damage; causation is a generally accepted one in Taiwan. However, when there is more than one facts of causative potency in medical cases, the but-for test based on proximate cause is used as the standard for determination. In certain cases, there are two or more reasons for the damaging result and any of the reasons can lead to it, if the but-for test applies, then there is no causality between any of the causes and their effects, which lead to non-compensation for the harmed party. In response to such inequity, another set of test has been developed, and that is substantial factor rule. The rule states that if the conduct of an individual is crucial to the produced effect, then causality exists between conduct and effect. The rule is not an independent criterion in determining whether causality exists, but serves as a complement to the but-for test in certain cases. The determination of ‘importance’ is often based on legal concepts, and not merely factual analysis.There are court cases that link the application of the loss of chance of survival theory with causation in Taiwan, and deem the chance of survival to be covered by the concept of personality rights. Due to the nature of medical treatment conduct, it can be hard to determine the causality. To avoid omission while determining the causation, the use of substantial factor can balance the responsibility of the party involved. The adoption of substantial possibility as practiced in the U.S. to determine the causality is worth considering. 3. “Where there is a lack of evident, there is little chance of winning.” The importance in allocating the responsibility in providing evidence during medical litigation is beyond description. As it is difficult for patients to provide evidence, the transfer of responsibility to provide evidence is inevitable and in accordance with the law. However, the inversion of such responsibility does not necessary make the doctors fully responsibly for the damage and that the patients are exempt from such responsibility. This study illustrates how courts in Taiwan, when dealing with medical disputes, allocate the responsibility in provide evidence, when do they invert such responsibility, and how they define the scope of such responsibility. Theoretical principles, actual judgement and laws and regulations concerning the alleviation of responsibility of the patients in providing evidence are summarised. 4. The system of specialised doctors refers to the natural division of tasks in the medical system. In clinical medical practice, the division of medical tasks is necessary and important. This is the so-called task division in organizational medical treatment. The theory is divided between whether the. can be applied to exempt organizational medical blunders committed, and what is the condition for such application? Both horizontal and vertical division of medical practice are analysed. The final chapter is conclusion and division. |
| Databáze: | Networked Digital Library of Theses & Dissertations |
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