醫療刑責過失程度之法實證分析：對醫療刑責合理化之省思

Evidence-Based Study on the Pattern of Negligence in Medical Crimes: with Special Reference to the Amendment Draft of the Medical Care Act

為了解目前醫師的業務過失致人於死與傷害有罪判決確定案件之過失程度，本文蒐集2001年1月1日至2015年11月30日期間有罪定讞之案件為材料，計有39件（18件為業務過失致人於死案件，21件為業務過失傷害案件）41名被告，以問卷方式委由45名臨床醫師就法院於各該案件中所認定之過失事實，採醫師觀點填答認定其疏失程度。結果顯示，不論是業務過失致人於死或致傷害案件，疏失程度均以重大或以上占絕對多數，甚至在認同法院所認定過失事實之前提下，認定為重大疏失或以上之筆數比例可高達95%以上，其原因固有待後續實證研究予以補充，始能釐清「醫療刑責合理化」以「故意或重大過失為限始負刑責」為方向之修法必要性；惟本研究仍反應出，縱將前開「醫療刑責合理化」入法，對目前有罪定讞率，應不會有實質影響。再者，填答醫師雖對於問卷案件多屬故意或重大疏失一節有極高一致性，但對於問卷中依據修法草案所擬就之「重大」疏失定義卻無共識，足徵「醫療刑責合理化」倘將重大過失入法，其構成要件要素尚有立法技術上之難度。

It has been alleged by physicians that medical malpractice criminal litigations cast heavy psychological burdens on them in Taiwan. Consequently in the past 3 decades, the physician community urged to promote the amendment of criminal law to exempt all the criminal responsibility of physicians during their practice, yet in vain. Instead, the contemporary amendment policy is switched to exempt the medical crimes only from slight negligence and confine it to the acts or omissions amounting to gross negligence and recklessness. However, solid evidence that physician community will enjoy the benefit of such amendment is still lacking. With the aim to understand clearly the patterns of negligence in the affirmed medical criminal convictions for causing death or injury in the performance of his medical duties or activities due to negligence, this study enrolled 41 affirmed medical criminal convictions during period between January in 2001 and November in 2015. The judgements of these convictions were reviewed independently by 45 physicians via questionnaire, and the acts or omissions in each conviction were categorized into grossly negligent, reckless or slightly negligent one. The result shows that the acts or omissions amounting to gross negligence and recklessness compose the majority (up to 95%) of convictions when compared to slight negligence, which shows statistically significance. Though the exact explanation for the phenomenon we observed remains obscured, yet these evidence-based data imply clearly that the contemporary amendment attempt promoted by physicians to exempt the medical crimes from slight negligence and confine it to the acts or omissions amounting to gross negligence and recklessness might probably gain little achievement to reduce the conviction rate because the contemporary convictions already were confined to grossly negligent and reckless crimes. Moreover, how to properly amend the current provisions in Medical Care Act, with special reference to the descriptions of mens rea or subjective elements of crime regarding gross medical negligence, remains a very difficult task for us.