Improper medical treatment shall not be deemed as medical malpractice unless a causal link may be established between such improper treatment and the result (Taiwan)

Ankwei Chen

The Taiwan High Court rendered the 107-Zai-Zi-7 Decision on December 19, 2019 (the “Decision”), in which it held that a medical practitioner may only be held liable for medical malpractice if a causal connection is established between the improper medical treatment and the result..

In this case, Defendant A was a physician of Hospital X.  Defendant A treated Complainant B for a car accident at Hospital X on August 7, 2008.  Although the ER recommended performing an angiography on B immediately, no angiography was performed after conducting a fasciotomy on the right lower limb.  It was not until August 9 at 1925 hours and at noon on August 10 did Physicians C and D check up on B.  B was then transferred to Hospital Y on August 12 and was diagnosed with “traumatic dislocation of the right knee, traumatic obstruction of blood vessels in the knee, complicated by ischemic necrosis of the right lower limb and sepsis”, followed by amputation of the right lower limb.  The prosecutor indicted Defendant A for the offense of mayhem as a result of malpractice under the last part of Article 284, Paragraph 2 of the Criminal Code.

According to the Decision, Paragraphs 3 and 4 were added on January 24, 2018 to Article 82 of the Medical Care Act which respectively provide that “only in the event that medical personnel negligently cause injury or death to patients in conducting medical practices due to a breach of medical due care, which goes beyond the reasonable exercise of professional clinical discretion, the medical personnel shall assume criminal responsibility,” and “the extent of the breach of the duty of due care and professional clinical discretion, as set forth in the preceding two paragraphs, shall be determined based on objective conditions such as the customary medical practice, medical level, medical facilities, working conditions, and level of emergency or urgency in the locality at the time of practice in the medical field concerned.”  The term “customary medical practice” refers to the norm shaped by medical conventions, rules or experiences in clinical medicine and is thereby considered an element of proper treatment administered in the normal course of business.  Although there may be a preliminary determination that treatment in conflict with such practices constitutes medical malpractice, further review is required to determine whether such negligence was a key cause of the unexpected death or injury of the patient.  In other words, although the treatment may be in violation of customary medical practice, there must be a significant causal connection between the treatment and the result for there to be a finding of medical malpractice.

As such, given that after performed the fasciotomy on B, Defendant A personally or instructed an intern or C and D to check up on B, issue physician’s orders and change treatment depending on the infection status of the wound.  After B’s surgery, the blood circulation around the wound was good without any necrosis of the right lower limb muscle tissue during the stay in Hospital X, and there was no evidence showing that the dislocation of the right knee was compressing the popliteal artery   before B left Hospital X, so there was no malpractice or any violation of custom medical practice.  Even though B suffered poor blood circulation from popliteal artery compression by the knee dislocation followed by necrosis and amputation after being transferred to Hospital Y, there is no proof that the dislocation occurred during the stay at Hospital X, nor was there any finding that Defendant failed to note such dislocation or failed to make appropriate check-ups after the surgery.  Moreover, it is even possible that B had not suffered from the joint dislocation until during the transfer process.  Therefore, there is a high probability of such factor being involved in the chain of causation.  Even though it is concluded that Defendant failed to record details about the care for the peripheral blood circulation after the surgery, which runs counter to typical “customary medical practice,” this is not the condition that led to B’s severe injury and limb amputation, so it is difficult to find a causal relationship between the two, and it was not appropriate to jump to the conclusion that the Defendant was negligent on such basis.