| 英文摘要 |
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. |
