In a medical emergency, a physician’s decision to not follow common medical practice should be examined for whether there was negligence in light of reasonable professional clinical discretion (Taiwan)

Ankwei Chen

The Supreme Court rendered the 107-Tai-Shang-4587 Criminal Decision onApril 2, 2019 (the “Decision”), in which it held that in a very urgent medical emergency, a physician’s decision to not follow common medical practices should be examined for negligence given reasonable professional clinical discretion under the circumstances .

Previous to the Decision, a lower court held that the appellants violated the offense of illegal medical treatment under Article 28 of the Physicians Act in committing professional negligence resulting in the death of a person.  Appellants therefore appealed the lower court’s decision.

According to this Decision, with medical malpractice cases often ending up in criminal litigation and leading to worsening physician-patient relationships, if physicians are excessively blamed and scrutinized under the law, it would not only contribute minimally to helping the people to clarify the facts and compensate the injured parties, it would cause physicians to take only very  defensive treatment measures and  undermining the advancement of medical technology and the original purpose of treatment.  To ensure that physicians can do their job smoothly and ease the tension between patients and physicians, Paragraphs 3 and 4 were added to Article 82 of the Medical Care Act on January 24, 2018, which limits criminal liability to patient deaths only to cases where there was a breach of the duty of care and an overstepping of the reasonable clinical professional discretion.  The duty of care and the reasonable clinical professional discretion depends on various objective circumstances such as the medical regulations, level of skill, medical facilities available, the working conditions and the degree of urgency at the relevant time and place of the incident.  The purpose of the provisions is to reduce the scope of physicians’ malpractice liability and reduce the risk of facing criminal prosecution for performing their duties, as well as providing clearer criteria in determining medical malpractice liability.

Therefore, breach of medical due care is determined by whether the treatment is consistent with customary medical practice and is considered as the average level of care a physician is required to exercise.  To wit, even if the treatment is not consistent with customary medical practice, such treatment must still be causally related to a certain degree with the result for a finding of medical malpractice.    In addition to the aforementioned “customary medical practice,” other important reasonable clinical factors enumerated in Article 82, Paragraph 4 of the Medical Care Act should also be considered.  For the degree of urgency factor, it must be examined from the perspective of the physician.  If the situation is indeed urgent, even if the physician did not follow common medical practice, given a reasonable level of clinical discretion under the circumstances, the question should be directed to whether there was any negligence.

As a result, the Decision concluded that the lower court’s decision failed to provide adequate explanation on how appellants failed to follow common medical practice or overstepped reasonable clinical discretion in the operation performed on the victim, and it also failed to review whether the facilities of Smile Clinic were inadequate before holding that there was medical malpractice.  Given the lack of clarification and reasoning in the lower court’s decision before convicting the appellants for wrongful death from professional negligence, the decision was flawed for failure to provide adequate reasoning and thus shall be remanded for further proceedings.