護理人員因應執行醫療輔助行為引發醫療糾紛之法制觀

Legal Perspectives on Coping Medical Malpractice of Implementing Medical Assistances by Nurses

本文剖析臺灣醫療糾紛現況，歸納為醫病對峙、多頭馬車與專法難產等現象。臺灣醫療糾紛之救濟途徑，現行有訴訟程序與訴訟外紛爭解決機制兩種選項，各有其優缺點。本文目的以護理人員之定位與責任，分析在執行醫療輔助行為時專業人員的定位，在醫師指導（指示）下協助執行醫療行為，非臨床助理角色，不宜視為擅自執行醫療業務者，毋庸承擔密醫罪。以現行行政規則方式調整法律位階之醫護分工依據，雖具彈性與時效性等優勢，但有損醫護分工的明確界線，造成醫護人員面臨醫療糾紛時，有罪且科責機會大增，進一步傷害醫護病和諧關係。本文以凸顯醫療輔助行為之擴張趨勢及其制定方式探討，冀望醫院管理者進行醫療糾紛危機管理與評估救濟途徑時能重視護理人員之角色定位。

This article analyzes the situation of medical malpractice now in Taiwan. It could be concluded as bad doctor-patient relationship, multiple options, and difficulty in building a specific law. In terms of medical malpractices resolutions in Taiwan, there are two directions called the litigation process and alternative dispute resolution, which both have their pros and cons. The purpose of this article is to analyze professional personnel's assisting position when implementing medical assistances based upon their position and responsibility. Under doctors' instructions, nursing personnel assist doctors to implement medical behavior. Nursing personnel are not seen as clinical assistances, their behaviors aren't suitable to be viewed as implementing medical practices. Therefore, their actions won't be punished. Using administrative regulations rather than law to adjust the differentiations between doctors and nursing personnel has the advantages of flexibility and time concerns, etc. But, this way influences the clear line between doctors and nursing personnel. When both doctors and nursing personnel face medical malpractices, the chances to have guilty punishments are high, thus further doctor-nurse-patient relationship is damaged. This article puts emphasizes on the expanding trend and drafting ways of medical assistances. When medical institutions deal with risk management and doctors and nursing personnel evaluate medical malpractices resolutions, the importance of nursing personnel's positions won't be ignored.