醫事鑑定制度之現況與改革芻議

Discussion on the medical appraisal system Present situation and reformation

醫療糾紛為了釐清事實，常需要專業意見來輔助，實務上最常見的專家意見參與，即是將案件事實與所提出之卷證資料及委託鑑定事由與病歷紀錄送至醫事審議委員會或醫學中心等機關先做「醫事鑑定」，再由法官依據經驗法則與論理法則參考後做出審判。醫事鑑定之報告，對於法院之事實認定與審理結果有著絕對之影響力，但我國醫事鑑定制度由於缺乏規範，過度著重機關匿名鑑定，導致嚴重背離民、刑事訴訟法之程序正義，讓憲法所保障之司法審判權與當事人訴訟權均遭剝奪，也無從確保該證據方法客觀中立。而採用非醫事專業訓練之鑑定人，也使得鑑定公信度無法獲得信任，對於鑑定之性質往往未加以重視，或有認為鑑定僅僅屬一個協助法院之功能與程序，既不涉及事實認定，又無鑑定人之具結與交叉詰問，而讓醫病法三方對審判的結果公正性有所疑慮，導致再送重覆鑑定而曠時費日。
為了能讓醫事鑑定制度能在釐清案件事實上更加完善，筆者從我國現行醫事鑑定制度現況與缺失談起，透過比較我國與各國醫事鑑定制度規範後，提出我國醫事鑑定制度之改革芻議，希望能參考他國成功經驗，採取專門委員制度或自然人複數鑑定制度，或在鑑定報告結論中加入實證醫學精神與載明鑑定經過，或採用鑑定先行與善用訴訟外的調解機制，或成立鑑定委員人才庫，並在法院審理上適度開放採用專家證人或專家陪審團制度，以期能為醫療鑑定之改革注入更多討論動能，而在未來建立更高效、透明、有實益之鑑定制度，早日釐清案件、緩和醫病法對立關係。

In order to clarify the facts of medical disputes, professional opinions are often needed to assist. The most common expert opinion participation in practice is to send the facts of the case, the documents submitted, the reason for the entrusted appraisal and the medical records to the medical review committee or medical center, etc. The agency first conducts "medical appraisal," and then judges make a judgment based on the rules of experience and theory. The medical appraisal report has absolute influence on the court’s determination of facts and trial results. Due to the lack of standardization of the medical appraisal system in our country, the excessive emphasis on anonymous appraisal by the agency has led to serious violations of the procedural justice of the civil and criminal procedure law, and the constitutional law. It resulted in both the guaranteed judicial power and the litigant’s right of litigation has been deprived, and it is impossible to ensure that the method of evidence is objective and neutral. The use of non-medical professionally trained appraisers also makes the credibility of the appraisal cannot be trusted. The nature of the appraisal is often not paid attention to, or the appraisal is only a function and procedure to assist the court, which neither involves fact finding nor an appraiser. The reconfirmation and cross-examination have caused the three parties of the medicine, patient and law to have doubts about the fairness of the trial results, which led to the time-consuming and time-consuming sending of repeated appraisals.
In order to make the medical appraisal system more important in clarifying the facts of cases, the author starts from the current status and deficiencies of current medical appraisal system of our country. We review our medical appraisal system after comparing the standards of medical appraisal systems in Taiwan and other countries. We hope that we can refer to the successful experience of other countries, adopt a special committee system or a plural identification system for natural persons, or add evidence based medicine to the conclusions of the appraisal report and specify the appraisal process, or adopt appraisal first and make good use of the mediation mechanism outside of litigation, or establish appraisal committee talent pool, and moderately open the use of expert witnesses or expert jury system in court proceedings, hoping to inject more discussion momentum into the reform of medical appraisal, and establish a more efficient, transparent, and beneficial appraisal system in the future, as soon as possible clarify the case and ease the contradictory relationship between the medicine, patient and law.