| 英文摘要 |
In 2018, the Medical Care Act in our country was amended to revise Article 82 and add new Sections 3 and 4, introducing the term “professional clinical discretion” into the definition of unlawful elements of medical negligence. This amendment is considered to aid in clarifying the criminal liability for medical negligence while also narrowing the scope of its applicability. However, through empirical observation and case analysis, this paper finds that, in addition to an increased conviction rate in first-instance courts following the amendment, a significant proportion of practical judgments have not adopted clinical discretion as the standard for determining the duty of care, resulting in a divergence between practical judgments and the intended purpose of the amendment. Furthermore, the excessive emphasis on the importance of clinical professional discretion in this amendment has led to a disarray in the framework for reviewing negligent crimes. Therefore, this article argues that the amendment to the Medical Care Act lacks substantial meaning, as clinical discretion, like medical routine, pertains to the detailed aspects of the duty of care within the elements of negligence. It is thus proposed that the text related to clinical professional discretion in Section 3 of Article 82 of the Medical Care Act should be removed to maintain consistency within the negligent crime system. Additionally, the concept should be incorporated into Section 4 to meet the medical community’s call for clearer definitions of the elements of medical negligence. |
