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Title: Medical Malpractice and the Criminal Judgment in Taiwan
Introduction Recently, the doctor-patient relationship in Taiwan is getting worse and worse each day. Whenever a patient or his/her relatives are not satisfied with the results of the medical service, this relationship becomes even more tightened. By dealing with this kind of medical lawsuits, the courts in Western countries adopt compensation to medical negligence, while the judges in Taiwan use criminal law in more than seventy-five percent of the medical disputes to punish physician in addition to the money damages. Thus, Taiwan is the only country in this civilized world that punishes doctors by the criminal law.
Objective Up to now, there have been only a few empirical studies of the criminal charge of medical malpractice available in Taiwan. Therefore, the purpose of this trial is to investigate the reasons for the overruled criminal judgment by empirical approach and to analyze the quality of the judgments by statistic methods. Ways are also found to reduce medical malpractice and to offer suggestions for better environment of the medical judiciaries.
Methods In this study, fifteen overruled judgments are collected from February 1st, 2002 to January 31st, 2005. The judgments of these cases are analyzed by using "the content analytic method". Furthermore, the key factors of these judgments are also scored and then analyzed by statistical methods.
Results It is found that in these 15 criminal prosecutions, 16 doctors out of 18 defendants had lost their trials, which indicates, statistically, one doctor is sentenced to be guilty per every three months. Out of these unlucky ones, approximately two-thirds of the criminals are surgeons, one-fifth internists, and the rest gynecologists and pediatricians. Also, the average of the terms of imprisonment is 6.6 months and, fortunately, all of the criminal doctors obtained probation or replacement with forfeit. In these cases, most of the doctors are from local hospitals or clinics, while the other two are from the medical centers. Concerning the disputes, 5 cases are involved with diagnoses of the illness and the other ten in the surgical complications. In the judgments, "considerable causation" is the main datum of the judges in 11 of the cases. In the attention obligation aspect, all judges mentioned that the physicians "should pay attention, could have paid attention, but did not pay attention". Nonetheless, only some judges, especially judges from a district court, mentioned about the foresight possibility, results avoiding possibility, and informed consent. Judges from Northern Taiwan are keen to use doctrines of the foresight possibility, results avoiding possibility, informed consent, and objective responsibility. In some cases, the validity of the appraisal of the expertise report from the Department of Health seems suspicious. Some sentences, especially in district courts, are disputable.
Conclusion In the first four years of the 21st century, statistically, there is one physician in Taiwan who is sentenced guilty per every three months, which is a unique phenomenon in the world. The criminal rate of physicians in Taiwan is the highest in all professionals in the world. Most of these criminal doctors are the laborious, mind-dependent, life-saving surgeons, internists, pediatricians, and gynecologists. However, some doctors seem to lose winnable trials. Fortunately, all doctors obtained probation or replacement with forfeit. Therefore, it can be inferred that these judges do not think these doctors have violated unforgivable negligence. The difference between the expectation of the doctors and that of the patients should be treated by informed consent doctrine to avoid the very expensive defensive medicine. Judges, using the highest world standard of care, instead of the national standard of care, in these cases, seem reluctant to demonstrate causation and attention obligation in their judgments. In the future, it is suggested that physicians should only be sentenced to be guilty under significant fault and objective result avoiding possibility.
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