論事實說明自己法則

The Doctrine of Res Ipsa Loquitur

事實說明自己法則，起初僅適用於一般侵權行為法，隨著醫療糾紛案件增多，而漸漸地被美國許多州採用於解決醫療糾紛。然而並非所有之醫療糾紛，美國法院均予以適用事實說明自己法則以為判斷，嚴格強調其適用法則時之成立要件，並將醫療過失案件予以類型化，也做為原告對被告之過失的舉證責任減輕方法。美國的醫療過失案件，對於醫療人員提起民事訴訟之案件，原告須舉證明下列事實：若無被告之過失，損害通常不會發生。被告或其雇用人對造成損害之媒介具有排他性之控制。原告無任何促成損害發生之行為。此種由原告先建立醫療過失之表面證據，讓事實審之法官認為原告所主張之事實可能為真，即真實之可能性大於虛假，則再由被告醫師就原告之傷害及損害之結果提出解釋或說明，若被告提不出合理之解釋，足論其有過失。相較我國，於醫療事故發生時，病人多處於資訊不對等的不具醫療專業的弱勢方，但卻需於醫療訴訟案件中，負舉證責任，實屬困難。我國於2007年修訂民事訴訟法第277條之舉證責任分配條文但書規定以消除顯失公平之情事。然而，是否有民事訴訟法第277條但書之適用，亦須由法官就具體個案認定之，且並非每個案件之承審法官都會適用但書之例外規定。法律的操作有人為的空間反不如嚴謹地要件規定，依法適用。

To review the medical malpractice cases in the U.S.A., we know they apply the doctrine of res ipsa loquitur to deal with this kinds of cases. If the court thinks that the doctrine is applicable, the plaintiff must build a prima facie evidence, that is, the accident has to be in accordance with the following three conditions: (1) accident of a kind not happening without the defendant’s negligence (2) the defendant has the exclusive control of instrumentality causing injury (3) absence of any voluntary action on the part of the plaintiff. In medical malpractice cases, as in negligence cases generally, the three conditions must concur to make the doctrine of res ipsa loquitur applicable. The injury must be of a character that would not occur but for an act of negligence on the part of the defendant; it must be caused by an agency or instrumentality with in the exclusive control of the physician; and it must not be due to any voluntary act on the part of the patient, nor have been contributed to by him. This kind of cases set up the prima facie evidence of the medical malpractice by the plaintiff first, the judge might support the fact that the plaintiff described, may be real; namely the possibility is greater than the impossibility. Finally, the defendant has to explain the reason why the patient suffered the injury. The negligence of the defendant would be inferred from a lacking of a reasonable explanation about the injury to the patient. The doctrine of res ipsa loquitur; is initially suitable for the general tort law. The number of medical negligence claims and court cases have continued to increase. This way of solving medical disputes has been adopted by plenty of states in U.S.A., gradually. Not all medical disputes can be solved in this way. This way only applies for those cases being in accordance with the three conditions. The principle shifts the burden of proof to the defendant. It is worth referring to and consulting when dealing with this kind of lawsuit. I hope Res Ipsa Loquitur Doctrine can offer another new vision to the field of law and another new kind of different reference for medical dispute lawsuits in Taiwan.