臨床專業裁量權下的醫療過失

Professional Clinical Discretion and Crime of Negligence

我國醫療法於2018年修正第82條，並新增第3項與第4項規定，將醫療過失之不法構成要件，新增臨床專業裁量一詞，認為此次修訂將有助於醫療過失刑責的明確化，同時限縮醫療過失的成立空間。惟本文透過實證觀察與判決分析發現，除了發現修法後一審法院有罪率提高外，亦有相當比例的實務判決並未接納臨床裁量權作為注意義務之判斷標準，形成實務判決與修法意旨乖離的現象。再者，醫療法該次修正過度強調臨床專業裁量之重要性，更導致過失犯審查架構紊亂。故本文見解認為，醫療法前述修正並不存在實質上的意義，臨床裁量與醫療常規相同，均屬於過失不法要件中，注意義務內涵的細緻化，是以本文主張應刪除醫療法第82條第3項臨床專業裁量之相關文字，俾使過失犯體系一致，復次前述概念應併同移至第4項規定，藉以滿足醫界對於過失不法要件明確化之呼籲。

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.