The Taiwan High Court rendered the 104-Yi-Shang-32 Civil Decision of March 29, 2016 (hereinafter, the “Decision”), holding that as long as an actor follows standard principles for clinical practice and correctly maintains specific approaches and a certain degree of caution, due care has been exercised and the actor cannot be deemed to be negligent.
According to the facts underlying this Decision, the Appellant in this case (who passed away during the trial and her successor assumed this lawsuit) went through an ultrasonic examination arranged by Dr. Yang, the Appellee. However, the Appellee only informed her that there was a benign tumor in her left breast which would be removed after her delivery. After the Appellant went through a C-section, she still felt uncomfortable in her right breast. She sought medical attention in the Breast Surgery Department of the hospital where the Appellee worked and went through an ultrasonic examination again. The Appellee still informed her that there was nothing abnormal about her right breast. The Plaintiff still felt something was wrong and went to another hospital for treatment, and a diagnosis confirmed that there was a lump in her right breast which was a terminal malignant tumor. She died after bringing this action. The Appellant asserted in her complaint that Appellee Dr. Yang was medically negligent since he only conducted imaging examination instead of physical examination and did not explain to the Appellant that she may stop breastfeeding so as to arrange for X-ray examination. As a result, she asserted that Appellant Dr. Yang and the hospital where he was employed should be jointly and severally liable for tort under the Civil Code.
According to the Decision, the so-called medical negligence means that an actor violates the obligation inherent in his/her occupation (e.g. physician) to predict and prevent violation of the rights of others. Therefore, as long as an actor follows standard principles for clinical practice and correctly maintains specific approaches and a certain degree of caution, due care has been exercised and the actor cannot be deemed to be negligent.
According to the Decision, examination of pregnant or breastfeeding women to detect early pathological changes relies primarily on physical examination and imaging examination such as ultrasonic examination. The medical records prepared by Appellee Dr. Yang in this case specifies the contents of the Appellant’s major complaint, family medical history, the breast palpation he performed, and the results of ultrasonic imaging examination. Dr. Yang conducted treatment based on standard and regular medical practices. In addition, since no tumor was found in the right breast of the Appellant as indicated in the results of the ultrasonic imaging examination of the breast during an outpatient visit, there was no lesion.
With respect to the scope of a physician’s obligation to explain to patients, it should be determined that the scope of such obligation has limitations due to considerations such as limitation on medical resources and reimbursement, economics and effective exercise of a patent’s right of consent. Whether the Appellee Dr. Yang was obligated to inform the Appellant that she might stop breastfeeding in order to conduct other items of examination such as mammography, depends on his determination of the foreseeability of the existence of a malignant tumor in Appellant’s right breast. However, it should be concluded that Appellee Dr. Yang could not have foreseen such possibility, and further could not have informed the Appellant to stop breastfeeding to conduct other examination for the sake of verification according to the results of the breast ultrasonic imaging examination during an outpatient visit mentioned above.
Therefore, the Appellant’s appeal was rejected on the ground that Dr. Yang and the hospital where he was employed were not negligent.