醫療契約法典化之研究

The Codification of Medical Contract

各國民法關於典型契約之規定，通常並未包含醫療契約。但近年來，包含荷蘭、中國大陸及德國，均於民法中規定醫療契約，作為有名契約之類型。此外，DCFR亦就醫療契約予以明文化。此項立法趨勢，源於近年來各國實務上發生甚多醫療契約之糾紛，法院見解分歧，而有予以統一明文化之必要。臺灣民法債編並無關於醫療契約的規定，實務上就醫療事故案件，乃依據民法及民事訴訟法之基本理論，參酌醫療法及病人自主權利法而為解釋適用。在各國民法逐漸將醫療契約明文化之際，有必要就各國之實定法規範，進行整理分析，探討其規範體例、斟酌其規範要點、分析規範標準之異同，以作為臺灣立法之參考。本文即以上述各國立法之規範為研究內容，參酌臺灣法及實務運作情形，以期明瞭各國法規範之精髓，並提出立法草案，用供參考。

In the past, no civil codes around the world stipulated the rules on medical contract law. Nonetheless, the Netherland, China, and Germany enacted the law of medical contract in their civil codes recently, and DCFR provided the law of medical contract for reference. All these medical contract laws provided detailed provisions on the duties of a doctor and many other significant issues such as informed consent and the burden of proof. The codification of medical contract is due to the widespread cases on medical malpractice around the world. The courts deliver diverse opinions on such kinds of cases, which renders it necessary to codify the law of medical contract. The Taiwan Civil Code does not provide any rules on the law of medical contract. Taiwan courts have to handle the cases of medical malpractice in accordance with the civil code and the code of civil procedure with the medical act and the patient autonomy act etc. Also the court heavily rely on the civil code provisions such as tort law and general contract law to decide the medical malpractice cases, many aspects of the medical law are not provied by the civil code. Therefore, it is necessary in Taiwan to analyze the laws of medical contract stipulated in other countries in order to set some rules for Taiwan law to follow in the future. This paper is intended to examine the rules of medical contract in those three countries and the DCFR, so as to clarify their major concerns and their resolutions in dealing with medical malpractice cases. It simultaneously examines the medical malpractice law in Taiwan so as to make a comparison with Taiwan law and foreign laws. In the end, it draws a draft on the law of medical contract for the legislative reference.The main issues discussed in this paper include the parties of a medical contract, the duties of a medical provider (such as treatments, evaluation, medical devices safty, referral, disclosure, medical records), the duties of a patient, the duty of care for a medical provider, the doctrine of informed consent,and the duty of confidentiality. All these rules are examined in a perspective of comparative law so as to demonstrate the features of the law in different jurisdictions.