醫療法第82條修法之法學意涵

2017年12月29日，《醫療法》第82條修正通過，修正意旨在於「過失責任判斷的明確化與合理化」。本文希望藉由一個德國實務曾發生的O型腿為例，說明新法的操作與適用，期能對未來司法實務的運用提供參考。違反必要注意義務，逾越合理臨床的裁量，不必然有刑法上的過失。注意義務的違反與臨床專業裁量與傷害結果之間的因果關係仍需進一步檢視。根據醫療法第82條，成立過失犯罪的條件必須是「違反必要注意義務」，且「逾越合理臨床專業裁量」，而法院仍須仔細斟酌刑法上的原則，對於醫療事故進行判斷，其中是否具有內在的關聯性，方能成立刑事之醫療過失。O型腿案，涉及「假設同意」概念的運用，這些都可以成為法院判斷醫療過失成立與否的啟示。 On December 29th, 2017, article 82 of Medical Care Act was amended, which intends to “clarify and rationalize the judgement of negligent liability.” With a practical case about bow-leggedness occurred in Germany as an example, this article hopes to explain how to applicate the amendment, and expects to provide a reference for our future judicial practice. A medical negligence doesn't lead to a criminal negligence. The causality between the breach of medical due care, professional clinical discretion and injury as the consequence should also be considered. According to the article 82 of Medical Care Act, the conditions of the criminal medical negligence are a breach of medical due care and exceeding the reasonable exercise of professional clinical discretion. Furthermore, the court should examine the medical lawsuit, according to the principles of Criminal Law, whether there was an immanent coherence between the behavior and the injury to confirm a criminal negligence. The case of bow-leggedness relates to the application of the concept “hypothetical consent,” which could be an inspiration for the court to determine whether a medical negligence is established or not.