論交通事故與醫療過失競合理論──以日本法為借鑑

Torts in a Succession of Traffic Accident and Medical Malpractice: A Comparative Study of the Japanese and Taiwanese Legal Systems

童綜合醫院神經外科案係我國醫療訴訟實務具指標意義之案件，涉及被害人先因交通事故受有損害，再因醫療過失導致損害擴大。臺灣高等法院臺中分院第一次判決認為交通事故及醫療過失成立客觀行為關連之共同加害行為，令醫方須就被害人之全部損害負賠償責任，引發輿論及醫界極大回響。實則，本案中交通事故及醫療過失不僅二行為之性質迥異，在時間上及場所上亦有明顯區隔，從而二行為並未具備客觀的行為關連性，無由成立客觀行為關連之共同加害行為，而僅係各別獨立之加害行為偶然形成競合。因之，各加害人僅須就與其行為有相當因果關係之損害部分負責。然而，於部分交通事故與醫療過失競合之案例，無法如本案可明確區分二者所生之損害，則就重疊之損害部分，可能為交通事故或醫療事故擇一之原因力所致，亦可能二者皆係真正原因但其加害部分不明，此時則應分別適用或類推適用共同危險行為之規定，令各加害人就損害連帶負責。

The neurosurgery case of the Tungs’ Taichung MetroHarbor Hospital is a famous medical malpractice case in Taiwan which evoked tremendous public disputes in 2012. This case involved a primary brain injury caused by a traffic accident in the claimant which was then succeeded by a neurosurgeon’s medical malpractice that added on a secondary brain injury, contributing to the final damage. The appellate court regarded the driver of the traffic accident and the neurosurgeon as joint tortfeasors, and held that the neurosurgeon should be responsible for the whole damage suffered by the claimant, a judgement that has attracted harsh criticism. In this study, it is argued that the holdings of the appellate court are inappropriate in the sense that in this case, the traffic accident and the medical malpractice were essentially different acts and the two events were separated by a significant time gap. Accordingly, the primary brain injury (~40% in this case) caused by the traffic accident could not be attributed to the neurosurgeon, and the driver alone should be responsible for the primary damage. On the other hand, as long as there was no recklessness or gross negligence in the treatment which made the secondary injury (~60% in this case) unforeseeable to the driver, the driver should be in joint and several liability with the neurosurgeon for the secondary damage. By contrast, in situations where the primary injury caused by the traffic accident is difficult to differentiate from the secondary injury caused by medical malpractice, it could be inferred that the damage was attributable to either tortfeasor or both tortfeasors simultaneously with uncertain proportions of contribution between them, and the rule of ’the joint dangerous acts’ should be applied to hold both tortfeasors jointly liable for the damage.